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TMI Blog2013 (7) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational market - If this policy objective is to be achieved, then the Department has to interpret and implement the rules in a meaningful way so that the exporter gets the maximum benefit eligible as prescribed under the law - Adjudicating authority should have considered the claim made by assessee under Rule 7 if they had satisfied the eligibility – M/s. Suksha International v. UOI (1989 (1) TMI 316 - SUPREME COURT) - interpretations of unduly restricting substantial export benefit which otherwise is due as per policy of government should be avoided – revision decided in favour of assessee. - F. No. 371/04/DBK/2011-RA-Cus. - 367/2012-Cus - Dated:- 7-9-2012 - Shri D.P. Singh, J. Shri Robindra Kumar Dash Consultant, for the Assessee. None, for the Department. ORDER This Revision Application is filed by the applicants M/s. Thermax Ltd., Pune against the Order-in-Appeal No. P1/VSK/269/09, dated 23-12-2009 passed by Commissioner (Appeals), Pune-I with respect of Order-in-Original passed by Additional Commissioner of Central Excise, Pune-I. 2. Brief facts of the case are that M/s. Thermax Ltd. are engaged in manufacture export of Industrial Boilers Vapour A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of manufacturing a complete thermic fluid heater as declared by the exporters in the list thus as per Shipping Bills read in conjunction with enclosed documents confirm the export of chillers in SKD condition. Therefore the respondents department had not only stated this fact of export of Complete Chiller/boiler by them from the very beginning, in their Brand Rate Fixation application before Additional Commissioner (BRU) Pune-I, but had provided relevant documents like Shipping Bills, Customs Invoices, Packing List Dutiable Inputs List used in manufacturing the complete chiller/boiler as exported by them also. The aforesaid fact is duly acknowledged by Additional Commissioner (BRU) Pune-I in all the impugned Orders-in-Original. When the condition to fix Brand Rate of Drawback is satisfied, that too is duly recorded by Additional Commissioner (BRU) Pune-I, what compelled him to pass such an order which contradicts his own findings? Specifically when Circular No. 26/2005-Cus., dated 8-6-2005 clearly makes them fully entitled for the same. 5.1 That, while claiming duty drawback for goods exported in part shipment mode, the respondents were refused to amend the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve raised the point that the Drawback claim was wrongly filed under Rule 6(1)(a) of the Duty Drawback Rules, 1995 and therefore sought condonation and requested to treat the said application as filed under Rule 7(1) of the Duty Drawback Rules, 1995. Applicant has also relied upon C.B.E. C. Circular No. 26/2005-Cus., dated 8-6-2005 and G.O.I. Revision Order No. 255/2012-Cus., dated 4-7-2012 in their own case. 8. In a situation as above, Government is of the considered opinion that the entire case matter should be considered and proceeded as per the statutory provisions of relevant rules/circulars and on the basis of all the legal documents which stands finalized as per the prescribed procedure and correct applicability of applicant s relied upon C.B.E. C. s Circular No. 26/2005-Cus., dated 8-6-2005. For the sake of proper understanding of issue, the relevant paras 2 3 of said circular are reproduced below :- 2. The matter has been examined by the Board. In the Duty Drawback Schedule, 2005-06, notified under Notification No. 36/2005-Customs (N.T.), dated 2nd May, 2005, the tariff items and description of goods have been aligned with the tariff items and description of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under Heading No. 8418 of Duty Drawback Schedule for which All Industry Rate Drawback @ 1.1% is available. The original authority has not considered the said circular while rejecting their application for fixation of the drawback claim filed under Rule 6(1) of Duty Drawback Rules, 1995. The special brand rate is fixed either under Rule 6(1) or 7(1) of Drawback Rules as the case may be. Since exporter has now requested for the fixation of brand rate under Rule 7(1), there is no reason to deny the same especially when C.B.E. C. Circular allows the same. Government has already decided similar issue in applicant s own case vide G.O.I. Order No. 255/2012-Cus., dated 4-7-2012 wherein it was held that in view of C.B.E. C. Circular, dated 8-6-2005 the option for fixation of brand rate of Drawback in such case cannot be denied. Hon ble Tribunal in the case of Cummins (India) Ltd. v. CC, Pune reported as 2012 (282) E.L.T. 92 (Tri.-Mumbai) has held as under :- Drawback - Fixation of brand rate of drawback - Application for fixation of drawback under Rule 6(1)(a) (Brand rate) and under Rule 7(1) (Special Brand rate) of Customs, Central Excise duties and Service Tax Drawback Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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