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TMI Blog2013 (11) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 74 of Customs Act, 1962. Applicants had imported old and used machinery and equipments/accessories spare parts on re-export basis. The goods were re-exported vide 16 Shipping Bills and applicants filed their drawback claims which were received in the department in 2008. Assistant Commissioner of Customs, Drawback had vide impugned Order-in-Original dated 24-11-2009 held that applicants have re-exported the imported goods after a period of 18 months contrary to the provisions of Notification No. 23/2008-Cus., dated 1-3-2008 and rejected the Drawback claim of Rs. 5,41,06,075/- under Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 read with Section 74 of the Customs Act, 1962. 3. Being aggrieved by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 23 months after its importation and filed drawback claims thereafter. The drawback sanctioning authority rejected the said claims and the respondent upheld the rejection despite the applicants drawing their attention to Chapter 1A of the Foreign Trade Policy 2004-2009 for legal framework. However, the respondent while passing the impugned order has failed to give proper reasoning for not considering the said provisions of the FTP. The Para 1A.4 and Para 1A.5 of the said Policy has spelled out the Transitional Arrangements made for any change in policy framework. The above transitional arrangement takes care of the exporter or importer who should not be put to the disadvantage by any abrupt changes in the policy. The above transitional arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of Notification No. 23/2008, retrospectively. The applicant placed reliance upon following case laws :- (i) 2006 (206) E.L.T. 6 (S.C.) = 2008 (12) S.T.R. 206 (S.C.) - MRF Ltd. v. AC (Assessment) Sales Tax Exemption (State Sales Tax). (ii) 2000 (119) E.L.T. 516 (S.C.) - Dai-Ichi Karkaria Ltd. v. U.O.I. (iii) 2011 (269) E.L.T. 194 (J & K) - Reckitt Benckiser v. U.O.I. (iv) 2010 (261) E.L.T. 98 (Gau.) - Herbo Foundation Pvt. Ltd. v. U.O.I. (v) 2001 (128) E.L.T. 52 (S.C.) CCE, Coimbatore v. Elgi Equipments Ltd. (vi) 2005 (183) E.L.T. 390 (Tri.-Bang.) - Hindustan Co-Cola Beverages Pvt. Ltd. v. CCE, Bangalore. (vii) 1998 (103) E.L.T. 128 (Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence subsequent to imports cannot be made applicable to this case. However they have admitted that said goods were re-exported after 19 to 23 months of their import into India. 8.1 In order to examine the issue, Government finds it proper to discuss relevant statutory provisions. Section 74(2) of the Customs Act, 1962 read as follows :- "Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other relevant circumstances, may, by notification in the Official Gazette, fix." Relevant Portion of the Notification No. 23/2008-Cus. read as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, dated the 6th February, 1965 was published in the Gazette of India, vide S.O. 426, dated the 6th February, 1965 and was last amended vide Notification No. 27/2006-Customs, dated the 14th March, 2006 which was published vide number S.O. 324(E), dated the 14th March, 2006." Both the notifications i.e. Notification No. 19/65-Cus., dated 6-2-1965 and Notification No. 23/2008-Cus., dated 1-3-2008 had been issued under Section 74(2) of the Customs Act, 1962. From perusal of Section 74(2), it clear that such notification can be issued for fixing up of drawback rate with regard to duration of use, depreciation in value and other relevant circumstances. As such, the provision of Section 74(2) of the said Act ibid, gives mandate to Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a export promotion scheme, which specifically governed under Sections 74 and 75 of the Customs Act, 1962 and rules/notifications issued thereunder. As such, legal framework of FTP cannot be automatically made applicable to provisions of the Customs Act, 1962. Moreover the said legal framework of FTP Policy para 1.4 Chapter 1A, refers to notifications or public notices issued by DGFT. As such this contention of applicant is not acceptable. The applicant has also relied upon some case laws. Government finds that fact involved in those case laws are different to the fact of this case and hence, ratio of said judgments cannot be made applicable to this case. 10. In view of above discussion, Government do not find any infirmity in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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