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TMI Blog2012 (9) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice was issued to the applicant for the recovery of excess Drawback amount of Rs. 12,74,542/-, by the original authority. Subsequently, the original authority confirmed the demand of excess paid drawback. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds : 4.1 The Appellants submit that they had filed bills of entry for the goods imported during the dispute period providing all details of the import goods for duty drawback under Sub-Heading No. 3907 30 90. The above bills of entry were assessed in the entirety by the officers and such assessments have not been challenged by the department. Consequently, the entire assessments done in the respective bills of entry have become final. 4.2 The Appellants submit that the drawback amounts of Rs. 23,31,647/- have been sanctioned by the proper officer of Customs on the basis of the assessment done in the shipping bills. The said amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Section 2(15) of the Customs Act, 1962 though the DEPB as long as such duty is levied under Section 12 of the Customs Act read with the Customs Tariff Act, 1975 or any other law for the time being in force. 4.5 The Applicant was not given an opportunity to oppose the re-fixation of drawback rates. Hence, the department has failed to appreciate the pleas made by the Applicants. The impugned order is therefore bad in law and is liable to set aside. 4.6. There is no provision under the Drawback Rules, 1995 for either re-fixation or revision of 'brand rates' inasmuch as the original fixation of duty drawback rates itself examining the duty-paid nature of the inputs and fixation of duty drawback only thereafter. It is for this precise reason that elaborate documentation and forms have been prescribed. 5. The respondent department vide their written submission dated 15-7-2009 mainly stated as follow : 5.1 The pleas of the applicant before original authority basically related to challenging the revision of brand rates by the Central Excise authority. The jurisdiction for fixation or revision of brand rates of drawback under Rules 6 & 7 of the Drawback Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been communicated to the Appellant but they are also having a copy of it available with them which they have enclosed to the Appeal. It is further seen that the Appellant vide letters dated 18-6-2008 & 30-6-2008, enclosed to the Appeal as Annexure H at page 73 and Annexure F at page 55, addressed to the Central Excise, Bangalore had in fact opposed revision of brand rates. Therefore, it is clear from the evidence on record that not only the Appellant had sufficient time and opportunity to oppose revision of the brand rate letters by the Central Excise authority from the date of such revision on June 2008 till their appearance before the Respondent for personal hearing in February 2009, but in fact they did avail such an opportunity. 5.4 Demand-cum-Show Cause Notice under Rule 16 of Drawback Rules was issued clearly mentioning that excess drawback amount of Rs. 12,74,542/- as detailed in Annexure 'A' was recoverable owing to revision of the brand rates by Dy. Commissioner of C. Excise, LTU, Bangalore. The Appellant, through Advocate K.S. Ravishankar presented the reply to this SCN vide letter dated 30-1-2009 and appeared for P.H. on 24-2-2009. The plea of Appellant about absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were aggrieved by the re-fixing of brand rate of drawback of duty by the LTU, Bangalore; they should have challenged such revisions/refixing of brand rate of drawback, which they failed to do. Once the brand rate is revised by the proper authority; the original authority i.e. drawback sanctioning authority was required to take consequential action w.r.t. revision of brand rate. As such, the Drawback sanctioning authority was right in demanding excess paid drawback in terms of Rule 16 of Drawback Rules, 1998. 8.2 Applicant has mainly contended that the Bill of Entry was assessed finally and the assessment was not challenged by the department. As such no recovery can be effected. Applicant has also contended that recovery cannot be made under Rule 16 of said rules. In this regard the relevant provisions of Rule 16 as reproduced below :- "Repayment of erroneous or excess payment of drawback and interest. - Where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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