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TMI Blog2010 (5) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer who is entitled to drawback under Section 75 of the Customs Act in respect of goods imported by them. The relevant portions of Section 75 of the Customs Act applicable to the case are Section 75(1) and sub-section (1A) thereof, which read thus : "75. Drawback on imported materials used in the manufacture of goods which are exported :- (1) Where it appears to the Central Government that in respect of goods of any class or description manufactured, processed or on which any operation has been carried out in India, being goods which have been entered for export and in respect of which an order permitting the clearance and loading thereof for exportation has been made under Section 51 by the proper officer or being goods ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Foreign Exchange Management Act, 1999 (42 of 1999), such drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback. (1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like materials that has been used in the goods manufactured, processed or on which any operation has been carried out in India and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 75 provides for allowing of drawback of duty of customs on imported material, subject to rules made under sub-section (2) By virtue of powers conferred under Section 75(1) of the Act ibid the Central Government made Customs and Central Excise Duties Drawback Rules, 1995. Rule 6 of the said rules provides for determination of drawback in respect of goods where no amount or rate of drawback has been determined under Rule 3 of the said rules. The said rule clearly enunciate for determination of the amount or rate of drawback considering the materials or components used in the production or manufacture of goods and the duties paid on such materials or components. The rate is determined after causing such enquiry to ascertain the actual inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered on materials used in the manufacture of export produces as evidenced by duty paying documents. The exporters had procured copper from domestic sources and have availed CENVAT credit of central excise duty paid on the said produce. In fact, the incidence of duty suffered on copper has already been neutralised by way of CENVAT Credit. 6. The contention of the exporters that duty incidence on copper should be computated on deemed import basis is not acceptable because the very concept of Section 75(1A) treating the material as deemed import material is by comparing the total quantity of such material imported into India and the quantity contained in the export product utilizing the said material. In essence, it implies that mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rates" and not to those exporters who apply at "Brand Rates." 4. A counter affidavit has been filed by the respondents reiterating the findings in Ext. P9 order. 5. I have heard counsel on both sides. 6. As is clear from the facts narrated above, the only question which requires to be considered in this case is as to whether a notification issued under sub-section (1A) of Section 75 is restricted to exporters who apply for drawback as per "All Industry Rates" and as to whether the same applies to exporters who apply for drawback at "Brand Rate" also. As is clear from Section 75 of the Customs Act and Ext. P7 notification, the same do not either expressly or impliedly stipulate that drawback claimed in respect of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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