2011 (2) TMI 680 - HC - Customs

Duty Drawback - export by 100% EOU - whether the Customs Notification No. 67/1998 read with circular of even number and customs notification No. 74/1999 read with circular of even number, would come in the way of an assessee like the respondent - a DTA unit - from claiming the benefit of duty drawback available to a domestic exporter in terms of the provisions of 75 of the Act. - Held that - when the notifications read with the Rules and the Section expressly deny the benefit of duty drawback in certain situations and in respect of certain goods, there is no question of the benefit being claimed or extended in contravention with the statutory provisions and the statutory notification, more so when the language of the notifications, rules and the section is clear, emphatic and unambiguous. - Tribunal was not right in allowing the appeals of the assessee and awarding duty drawback as per all industry rate against the provision of Notification Nos. 67/1998 and 74/1999. Penalty - we have no doubt in our mind that the conduct of the assessee constitutes a clear suppression or misdeclaration to make gain which was otherwise not enabled under the statutory provisions and therefore the necessary consequences inevitably befalls. We find that the adjudicating authority was fully justified in invoking penalty provisions and there was absolutely no scope or reason for the tribunal to reverse this finding.

Issues Involved:
1. Whether the CEGAT erred in holding the Order-in-Original as bad for allowing duty drawback as per Board Circular No. 67/1998 and 74/1999.
2. Whether CEGAT was right in allowing the appeal and awarding the drawback as per All Industry Rates against the provisions of Notification 67/1998, Board Circular No. 67/1998, and 74/1999.
3. Whether the respondent was eligible for drawback as per All Industry Rate or Brand Rate.
4. Whether the order of the CEGAT runs contrary to the Rules, Circulars, Notifications, and Procedures prescribed under the Customs Act for allowance of duty drawback by the respondent.
5. Whether the CEGAT was right in holding that non-mentioning of the goods being manufactured by EOU/EPZ does not amount to mis-declaration in violation of sub-section (2) of section 50 of the Customs Act.

Issue-wise Detailed Analysis:

1. Error in Holding Order-in-Original as Bad:
The Tribunal held that the Order-in-Original was bad because it allowed duty drawback based on Board Circular No. 67/1998 and 74/1999. The High Court found that the Tribunal committed an error in this regard. The court emphasized that the Customs Notification Nos. 67/1998 and 31/1999 clearly imposed an embargo on claiming duty drawback for goods manufactured in 100% EOUs or EPZs. The Tribunal's interpretation that the goods manufactured by EOUs on behalf of DTAs could still be eligible for duty drawback was incorrect. Therefore, the Tribunal's decision to characterize the Order-in-Original as bad was erroneous.

2. Awarding Drawback as per All Industry Rates:
The High Court ruled that the Tribunal was not right in allowing the appeal and awarding the drawback as per All Industry Rates against the provisions of Notification Nos. 67/1998 and 74/1999. The court noted that the notifications explicitly denied the benefit of duty drawback for goods manufactured in 100% EOUs or EPZs. The Tribunal's decision to allow the drawback based on the assumption that the goods were manufactured on behalf of the DTA unit was contrary to the clear language of the notifications.

3. Eligibility for Drawback as per All Industry Rate or Brand Rate:
The High Court did not find it necessary to answer this question as it was not directly addressed by the Tribunal. Both parties agreed that this precise question did not arise before the Tribunal, and therefore, it was not examined.

4. Tribunal's Order Contrary to Rules, Circulars, Notifications, and Procedures:
The High Court held that the Tribunal's order ran contrary to the Rules, Circulars, Notifications, and Procedures prescribed under the Customs Act. The court emphasized that the benefit of duty drawback is subject to the provisions of the Customs Act, the Drawback Rules, and the relevant notifications. The Tribunal's decision to allow the drawback despite the clear embargo in the notifications was contrary to the statutory provisions.

5. Non-mentioning of Goods Manufactured by EOU/EPZ as Mis-declaration:
The High Court found that the Tribunal was not right in holding that the non-mentioning of goods being manufactured by EOU/EPZ did not amount to mis-declaration. The court noted that it was the responsibility of the respondent-assessee to disclose all relevant facts, including the fact that the goods were manufactured in 100% EOUs or EPZs. The failure to disclose this information constituted a mis-declaration, justifying the levy of penalties by the adjudicating authority.

Conclusion:
The High Court answered the questions in favor of the revenue, holding that the Tribunal erred in its interpretation of the notifications and the statutory provisions. The Tribunal's decisions were reversed, and the matter was remanded to the Tribunal for passing orders in conformity with the High Court's answers. The court also appreciated the objective and fair manner of submissions made by the counsel for the respondent-assessee.

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