2018 (4) TMI 1188 - AT - Customs

Duty Drawback - fixation of brand rate - retrospective application of the beneficial circular - original authority took a view that the brand rate cannot be available to the respondents as the applications have been filed beyond the prescribed period - Held that - the original authority, while noting that the appellants had only produced the original commercial invoices for verification however, since they have not produced the related excise invoices, it has been concluded that the relevant documents have not been produced. Only failure to produce the excise invoices and instead producing only the commercial invoices should not be a mere reason for concluding that the documents have not been produced, especially when there are other ways to verify whether duty liabilities have indeed been suffered by the respondents as claimed. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Availability of brand rate of drawback to the respondents.
2. Application of Board's Circular No. 13/2010 retrospectively.
3. Timely submission of required documents for drawback claims.
4. Production of invoices within the prescribed period.

Analysis:

Issue 1: Availability of brand rate of drawback
The case involved the availability of brand rate of drawback to the respondents, M/s. Rite Ltd., for the rehabilitation and re-export of Hitachi Diesel Electric Locomotives to Sudan. The original authority initially denied the brand rate citing late filing of applications. However, the Commissioner (Appeals) found that the applications were filed within 90 days, with supporting documents submitted subsequently. The Tribunal noted that the claims were filed within the prescribed period, including the condonable period, and dismissed the Revenue's appeal, emphasizing that failure to produce excise invoices should not be a sole reason to reject the claim.

Issue 2: Application of Board's Circular retrospectively
The Revenue contended that the Board's Circular No. 13/2010, extending time limits for filing brand rate drawback claims, cannot have retrospective effect. The Tribunal considered the argument, referencing a Supreme Court judgment on the presumption of retrospective nature of notifications. However, the Tribunal upheld the Commissioner (Appeals)' decision to apply the Circular retrospectively, citing a previous Supreme Court decision allowing retrospective benefit of a circular in a similar case.

Issue 3: Timely submission of required documents
The Revenue raised concerns about the timely submission of documents, highlighting that some were submitted after the 90-day period, and some duty paying documents were missing. The respondents, through their counsel, argued that all required documents were eventually submitted between specific dates after reminders. The Tribunal reviewed the facts and found that all documents were indeed submitted within the specified period, countering the Revenue's argument.

Issue 4: Production of invoices within the prescribed period
The Revenue also raised issues regarding the production of invoices within the prescribed period. The Tribunal noted discrepancies between the original authority's findings on document submission and the Commissioner (Appeals)'s observations. Despite the absence of certain excise invoices, the Tribunal emphasized that the failure to produce them should not invalidate the claim, especially when alternative methods exist to verify duty liabilities. Consequently, the Tribunal dismissed the Revenue's appeal, considering the overall circumstances and the respondent's compliance with export requirements.

This detailed analysis of the judgment addresses the key issues raised in the case, providing a comprehensive overview of the Tribunal's decision and the arguments presented by both parties.