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TMI Blog2009 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 22/23-6-1989 to 21st December, 1990. 3. By a Notification dated 4th July, 1964 issued by the Agricultural Marketing Adviser to the Government of India it was decided that the export of goods specified under the Schedule would not be permitted unless the goods were graded under the provisions of the Vegetable Oils Grading and Marketing Rules, 1955 and Certificate of Inspection was issued in that behalf. From the Schedule to the Notification, both "Castor Oil" and "Castor Oil for Pharmaceutical purposes" were included in the Schedule. By the Notification of 4th July, 1964 an order of prohibition was issued that effective from 15th July, 1964 export of goods specified in the Schedule would not be exported unless the the same have been graded in accordance with the provisions of the Vegetable Oils Grading and Marketing Rules, 1955 and accompanied by a certificate of inspection to the effect that they have been properly graded and sealed with the mark "Agmark". 4. By Notification on 3rd October, 1964 the Government introduced with immediate effect a test for Medicinal grade Castor oil (Cold drawn) as set out on page 435 of the First Edition of Pharmacoepia of India 1955 which read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed a letter dated 6th January, 1992 on behalf of the industry. Attention was invited to various difficulties financially and otherwise suffered by the exporters of the Castor Oil. It was prayed that the Government should take a sympathetic view and grant draw back on export of Castor Oil. It was also requested on behalf of the petitioners that draw back on export of Castor Oil First Special effected from 1st July, 1989 to 20th December, 1990 be allowed by relaxing the Rule under Serial No. 15 and all like. 12. The Respondents inspite the claim for drawback did not take any action. Writ Petition being Writ Petition No. 2299 of 1992 came to be filed before this Court wherein Rule was issued. The petition was disposed off by order dated 10th November, 1992 with the direction to the 4th respondent to decide the claim for draw back for the period 1st July, 1989 to 21st December, 1990 within a time frame as set out therein. In the same petition a Motion was taken out. That Motion was disposed off with a direction that the respondents are directed to decide the claim of the petitioner for draw back for the period 1st July, 1989 to 21st December, 1990 on or before 29th October, 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents by subsequent communication of 6th November, 1990 to deny to them the drawback facilities by amending the letter dated 6th December, 1989 to include only Castor Oil medicinal. Learned Counsel has relied upon various authorities which we shall consider at the appropriate stage. 16. On behalf of the Respondents learned Counsel submits that Castor Oil First Grade is not Castor Oil medicinal and as such would not fall under Entry No. 12 or for that matter under sub-head 1201 which was drug and pharmaceutical product not provided elsewhere. No duty drawback claim could have been granted as as such the Government was right by letter of 6th November, 19 90 to amend the fixation of rates by letter of 6th December, 1989. 17. To understand the controversy we may point out Rules have been framed for allowance of drawback. Known as the Customs and Central Excise Duties Drawback Rules, 1971, hereinafter referred to as the "Drawback Rules." The Government can fix the rates in terms of Rule 3. Rule 4 confers power on the Central Government to revise the rates determined under Rule 3. In those cases where drawback has not been determined considering Rule 6 any manufacturer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il First Special Grade as they were doing earlier. It is only that the same oil then was being described as Castor Oil medicinal, pursuant to the test which was earlier being done in terms of Circular of 3rd October, 1964. That was by hot extraction or by extraction with solvents as has been described earlier. Such Castor Oil was always treated by the Government as Castor Oil medicinal. It is only pursuant to the Circular dated 22/23-6-1989 that the Thin-layer Chromatographic Test was applied for identification of Cold draw Castor Oil of Medicinal Grade. The communication of 6-12-1989 covered the period 1-6-1989 to 31-5-1990. In other words upto 22/23-6-1989 the Castor Oil undergoing the earlier test was still treated as Castor Oil medicinal. It is only subsequent to 22/23-6-1989 it had to undergo the Thin-layer Chromatographic Test. The petitioners had been exporting Castor Oil First Grade and the Government in fact recognised the same by fixing the rates by letter of 6th December, 1989. Under these circumstances could the Government have withdrawn the same by the communication of 6-11-1990. 21. We may make reference to some of the judgments referred to at the Bar. In Mazda Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be proper and equitable to demand amount by claiming that the payment was erroneous. 23. In our opinion so far as these periods are concerned, firstly, the Government did not fix any rate. It is only on 21st December, 1990 realising that there was large export of Castor Oil, Castor Oil was included in Schedule 2 under Item No. 15. In other words the Government felt the need to grant drawback benefits to Castor Oil. However, after introduction of the new test from 22/23-6-1989 Castor Oil medicinal Castor Oil First Grade was being branded under two Agmark trade marks namely Agmark Castor Oil medicinal and Agmark Castor Oil First Grade. Castor Oil First Grade would not fall under Entry No. 12 of Schedule II. In our opinion, the reasons which we have given for the period 1st June, 1989 to 31st May, 1990 will not be available for these subsequent periods. 24. However, we find that the change in the status of Castor Oil medicinal to Castor Oil First Grade has only taken place on account of the new test introduced by the Government. The same Castor Oil was earlier being exported as Castor Oil medicinal by applying the test in terms of Circular of 3rd October, 1964. In our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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