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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 ..... ustoms (Appeals), Mumbai with respect to Order-in-Original No. 17/09/AC/DBK Adj(x), dated 30-3-2009 passed by the Assistant Commissioner of Customs, Drawback Section, JNCH. 2. Brief facts of the case are that M/s. 3 M India Ltd. exported EPOXY Resin Powder and claimed duty drawback under Brand Rate fixed by Deputy Commissioner of Central Excise, LTU., Bangalore. The brand rate was subsequently revised by Deputy Commissioner of Central Excise, LTU, Bangalore, by letter vide F.No. IV/06/08/2008/GLT-III/LTU, dated 16-6-2008. As per the revised brand rate letters M/s. 3 M India Ltd. had availed excess drawback amount of Rs. 12,74,538/-. Accordingly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the ground for revision/re-fixation of brand rate itself is challenged as untenable in law and tainted by legal errors and consequently, the impugned Order all suffers from the same legal errors and therefore not sustainable. The Applicants submit that the thrust of the department s contention for revising/re-fixing the brand rate was that import of inputs by paying the BCD through could not be construed as duty paid and this is entirely wrong legal proposition contrary to scheme of DEPB/Drawback as contained in the Foreign Trade Policy (FTP) and the Customs Act respectively. One may pay any type of customs duty as defined 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 rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenge it before appropriate higher authority. 5.3 The Appellant has wrongly stated that even while re-fixing the drawback rates the Department had not intimated the Appellant and it was only when the Respondent was issued notice for recovery of excess drawback that the Appellant got opportunity of the first time to oppose re-fixation of drawback rates. This ground raised by the Appellant is factually incorrect and misleading. It may be seen from the Annexure E, enclosed at page 51 and Annexure G, enclosed at page go to 71 to the Appeal Memorandum that every letter revising brand rate has not only 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rate of drawback, on the basis of which drawback was sanctioned by the original authority. In terms of Rule 6 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 the authority of fixation of Brand Rate of Drawback lies with the Jurisdictional Commissioner of Central Excise or Commissioner of Customs, as the case may be. Applicant being large Tax Payer unit, the LTU, Bangalore was the proper authority to fix/refix/revise the brand rate of drawback. The Drawback Sanctioning authority sanctions the drawback as fixed by the proper authority. If the applicants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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