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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 ..... o claim drawback in respect of the amount of copper used in the manufacture of the goods exported by them, respondents are directed to calculate the amount of drawback available to the petitioner in respect of the goods exported by the petitioner which is the subject matter of Ext. P9 order and disburse the amount due to the petitioner as drawback at the rate applicable as expeditiously as possible, writ petition is allowed as above. - W.P. (C) No. 21315 of 2005, - - - Dated:- 17-5-2010 - S. Siri Jagan, J. Shri John Varghse, ASG, for the Respondent. [Judgment]. The petitioner is a manufacturer and exporter of insulated copper strips and rectangular paper covered conductors. The two raw materials which go into the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of such goods in accordance with, and subject to, the rules made under sub-section (2) : Provided that no drawback shall be allowed under this sub section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods, or is not more than such percentage of the value of the imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods as the Central Government may, by notification in the Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification, the petitioner claimed drawback in respect of the copper used by the petitioner in the manufacture of the exported goods, which was originally rejected by Ext. P6 order. The same was challenged by the petitioner before this Court in O.P. No. 23287/2001, in which, by Ext. P8 judgment, this Court directed the respondent to reconsider the issue in the light of Ext. P7 notification. Pursuant thereto. Ext. P9 order has been passed, the operative portion of which reads thus : 2. I have carefully gone through the records and perused the documents submitted by the exporters. The issue involved is while fixation of brand rate of duty drawback, for calculation of incidence of duty in respect of items covered under notification No. 44/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 44/91 dated 30-5-1991. 5. In the instant case, copper is one of the inputs used in the manufacture of paper insulated copper strips and rectangular paper covered copper strips. During the relevant period, the notification inter alia included copper. In view of this the exporters contended that for determination of drawback under Rule 6, the Ministry should treat copper used in the export products as deemed import material. It is pertinent to mention here that Section 75(1A) prescribing the deemed import material is only for the purpose of fixation of All Industry Rates of duty drawback under Rule 3 of the Customs Central Excise Duty Drawback Rules. 1995 which are calculated on an average basis by taking into account the average quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on copper in terms of notification No. 44-91-Cus. (N.T.), dated 30-5-1991 in respect of three brand rate applications for which rates have been determined vide Ministry s F.No. 601 /8401/484/2001-DBK (Kochi-09) dated 21-3-2002, F.No. 601/8501/485/2001-DBK (Cochin-08) dated 19-3-2002 and F.No. 601/8501/486/2001-DBK (Cochin-07) dated 19-3-2002. 3. The petitioner contends that Ext. P9 wrongly proceeds on the basis that drawback on the basis of notification issued by the Government under Section 75(1A) is applicable only to exporters who apply for drawback as per All Industry Rate fixed by the Government and not to exporters who apply for drawback as per Brand Rate to be fixed. The petitioner s contention is that this finding is ex facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Brand Rates are applicable only for the determination of the actual amount of drawback to be granted to exporters and not for deciding as to whether any exporter is eligible for any drawback at all. Therefore, clearly, Ext. P9 order is unsustainable under law. 7. Accordingly, Ext. P9 is quashed. It is declared that the petitioner though applied for drawback at Brand Rate is eligible for drawback on the copper used by them in the manufacture of the imported goods in view of Ext. P7 notification in which copper has been declared as deemed imported material under Section 75(1A) of the Customs Act. Consequently, the petitioner is entitled to claim drawback in respect of the amount of copper used in the manufacture of the goods exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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