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2012 (6) TMI 432 - AT - CustomsRecovery of excess duty draw back - The appellant made an application for draw back under Rule 6 - entitlement to claim draw back in respect of IC Diesel Engines exported in terms of Rule 7 - department alleged the claim to fall under Rule 3 of Draw Back Rules Held that - It may be noted that all the conditions to be complied with for determination of the drawback rate under Rule 6 and Rule 7 are the same and therefore, the claim should not be rejected only on the ground that the claim was filed under Rule 6 instead of Rule 7 - to claim the benefit under Rule 7, certain terms and conditions have been prescribed and it is for the department to verify the claim of the appellant whether he satisfies prescribed the terms and conditions - matter needs to be remanded back to the adjudicating authority for consideration afresh of the claim of the appellant for sanction of draw back under Rule 7 of the Draw Back Rules and if the appellant is found to be eligible, then sanction the same as per law - the department s out-right rejection without verification is unacceptable.
Issues Involved:
1. Eligibility for drawback under Rule 6 versus Rule 7 of the Drawback Rules. 2. Alleged mis-declaration by the appellant. 3. Excess drawback recovery and penalty imposition. 4. Interpretation of procedural requirements and substantive benefits under the Drawback Rules. Detailed Analysis: 1. Eligibility for Drawback under Rule 6 versus Rule 7 of the Drawback Rules: The appellant, a manufacturer and exporter of IC Diesel Engines, initially applied for and received drawback under Rule 6 of the Drawback Rules. However, the department later contended that the appellant's goods were eligible for an All Industry Rate of drawback under Rule 3, which was less than the amount claimed under Rule 6. The appellant argued that they were entitled to drawback under Rule 7, as the All Industry Rate was less than 4/5th of the duty incidence on inputs used. The Tribunal noted that the application forms and required information for claims under both Rule 6 and Rule 7 are identical. Therefore, even if the application was made under Rule 6, it should be considered under Rule 7 if the appellant meets the eligibility criteria. 2. Alleged Mis-declaration by the Appellant: The department accused the appellant of mis-declaration by claiming that no All Industry Rate had been declared for their goods, resulting in an excess drawback of Rs. 12,95,57,132/-. The Tribunal found that both the appellant and the department erred in processing the claim under Rule 6. The Tribunal emphasized that the sanctioning authority should have known that the product was notified under Rule 3 and thus ineligible for a brand rate under Rule 6. Consequently, the appellant's declaration was not deemed intentionally misleading. 3. Excess Drawback Recovery and Penalty Imposition: The adjudicating authority demanded the recovery of the excess drawback and imposed a penalty under Section 114 of the Customs Act. The appellant contested this, arguing that their claims should be considered under Rule 7, which would negate the excess drawback. The Tribunal supported this view, referencing a CBEC clarification that claims should not be rejected solely on the grounds of being filed under the wrong rule. The Tribunal directed the adjudicating authority to reassess the claim under Rule 7 and determine eligibility accordingly. 4. Interpretation of Procedural Requirements and Substantive Benefits under the Drawback Rules: The Tribunal highlighted the purpose of drawback rules, which is to relieve the tax burden on export goods and enhance competitiveness. It cited a CBEC letter and judicial precedents to support the appellant's case. The Tribunal referred to the Gujarat High Court's decision in Stovec Industries Ltd., which held that applications should not be rejected due to inadvertent filing under the wrong rule. The Tribunal also cited the Supreme Court's decision in Unichem Laboratories Ltd., emphasizing that procedural lapses should not deprive exporters of substantive benefits. Conclusion: The Tribunal set aside the impugned order and remanded the case back to the adjudicating authority for fresh consideration of the appellant's claim under Rule 7. The adjudicating authority was instructed to verify the eligibility and, if satisfied, sanction the drawback as per law. The appellant was to be given a reasonable opportunity to substantiate their claim. Pronouncement: The judgment was pronounced in court on 12.04.2012.
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