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TMI Blog2013 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... lain readings should be adhered to and that provision in the statute as clarified by C.B.E. & C. Circulars were to be religiously followed. It appears that either full facts were not produced/available at the time before him or the respondent exporter was not interested in putting up the case in a legal and proper manner because neither the status of exports was on record nor the exporter appears to be willing to challenge this communication - It was very peculiar situation that department first denied drawback at AIR rate, then subsequently rejected the brand rate fixation application - C.B.E. & C. had categorically stated in the Circular that brand rate of drawback would also be admissible in such case – Decided against revenue. Condonation of Delay - Government after due consideration of factual reasons of delay condones the same in exercise of power vested u/s 129DD - delay of 15 days happened due to filing appeal and thereafter realizing the mistake - the revision application had been filed - the delay involved was within the condonable limits of further 3 months. - F. No. 380/36/DBK/2011-RA - 255/2012-Cus - Dated:- 4-7-2012 - Shri D.P. Singh, J. Shri R.K. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as detailed in para 2 of the order, as discussed and held in para 8.5 above. Further, following the ratio of Hon ble CESTAT, Mumbai s decision in the case of C.C. (Imports), Mumbai v. M/s. Shantilal C. Mehta, reported in 2009-TIOL-1969-CESTAT-Mum., the Additional Commissioner (BRU), Central Excise, Pune-I Commissionerate, is directed to fix Brand Rate of Drawback after due verification of all relevant documents submitted by the appellants and after giving them an opportunity of personal hearing, to meet principles of natural justice. Further, to ensure safeguard of Government revenue, it may also be verified that the appellants have not claimed/availed drawback @ All Industry Rate of Drawback, in respect of the goods exported, from the concerned Customs authorities in charge of ICD Dighi/JNPT from where the subject goods have been exported. The appeal filed by the appellants is thus allowed with consequential relief, in above terms. 4. Being aggrieved by the impugned orders-in-appeal, applicant department has filed the revision application under Section 129DD of Customs Act, 1962 before Central Government on the following grounds :- 4.1 Commissioner (Appeals) failed to exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Duty Drawback Rules, 1995, I find that the original adjudicating authority has passed a correct and legal order and I find no reason to interfere with the same. The Instant OIA No. PI/RKS/50/2011 being appealed against is contradictory to the aforesaid OIA No. PI/VSK/269/2009, dated 23-12-2009, is bad in law and ultra vires. 4.3 A condonation of delay application is also made to condone the involved delay of 15 days which has occurred due to first approaching the wrong forum for appeal i.e. CESTAT and then correcting the mistake. 5. A show cause notice was issued to the respondent under Section 129DD of Customs Act, 1962 to file their counter reply. In response to show cause notice, respondent has submitted cross objections :- 5.1 As per para 5(a) of ground of appeal stated that shipping bill bears the description of the product exported as Vapour Absorption Chiller of various specifications. These chillers are under the Heading No. 8418 of the duty drawback schedule for which All Industry Rate of Drawback @ 1.1% is available. Clarification : We Thermax Ltd. have completed the order of supply of Vapour Absorption Chiller Model EDQ60A T and Model SS 90A under var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant. 5.4 That while claiming duty drawback for goods exported in part shipment mode, the respondents were refused to amend the shipping bills due to export in part shipment and advised by the Assistant Commissioner, ICD Dighi to apply to Brand Rate Unit (BRU), Pune-I Commissionerate for fixation of Brand Rate. The same letter F.No. ICD/DIGHI/Thermax/Amendment/SB/229/07-08, dated 11-6-2008 from the Assistant Commissioner of Customs ICD, Dighi is attached herewith for your reference. In fact that was the permanent and legitimate solution to the problem faced by the respondent. 6. Personal hearing scheduled in this case on 18-4-2012 was attended by Shri R.K. Sharma, Counsel and Shri Ravinder Kumar Dash, Consultant for and on behalf of the applicant who reiterated the grounds of revision application. 7. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 8. Government first consider the application for condonation of delay of 15 days which happened due to filing appeal before CESTAT, Mumbai and thereafter realizing the mistake, this revision application has been filed. As the delay involved here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board. In the Duty Drawback Schedule, 2005-06, notified under Notification No. 36/2005-Customs (N.T.), dated 1 May, 2005, the tariff items and description of goods have been aligne with the tariff items and description of goods appearing in the first schedule to the Customs Tariff Act, 1975 at the four digit level. It has been clearly stated in General Note 2 of the above mentioned notification that General Rules for the Interpretation of the First Schedule to the Customs Tariff Act, 1975 shall mutatis mutandis apply for classifying the export goods listed in the Drawback Schedule. Rule 2(a) of the said rules provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. In view of this legal position, the goods exported in CKD/SKD/unassembled condition shall be entitled to the All Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Drawback and further advised the exporter to apply to Brand Rate Unit for fixation of Brand Rate. It appears that either full facts were not produced/available at the time before him or the respondent exporter was not interested in putting up the case in a legal and proper manner because neither the status of exports through JNPT was on record nor the exporter appears to be willing to challenge this communication. It is very peculiar situation that department first denied drawback at AIR rate, then subsequently rejected the brand rate fixation application. 10.4 Government notes that C.B.E. C. has categorically stated in the above said Circular dated 8-6-2005 that brand rate of drawback would also be admissible in such case. Commissioner (Appeals) has therefore rightly allowed the fixation of duty drawback brand rate in the light of said C.B.E. C. Circular subject to revenue safeguard as mentioned therein. Hon ble Supreme Court also in a number of cases including that of M/s. Suksha International v. UOI [1989 (39) E.L.T. 503 (S.C.)] has observed that interpretations of unduly restricting substantial export benefit which otherwise is due as per policy of Government should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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