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TMI Blog2014 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been filed by M/s. Alfa Level India Ltd., Pune against the Order-in-Appeal No. GOA/CUS/CM/131/2009, dated 16-12-2009 passed by Commissioner of Customs (Appeals), Pune. 2. Brief facts of the case are that the applicant had exported Industrial Separators and Decanters under the claim for duty drawback scheme. Rule 13 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 (the Drawback Rules). 2.1 The applicants had applied for fixing brand rate under Rule 6 under Drawback Rules. Vide his diverse letters, the Joint Commissioner of Central Excise (BRU) Pune-I fixed the amount of drawback for the exports made by the applicants in respect of each of 22 shipping bills, which are subject matter of this revision application. The applicants found that in some of brand rate letter issued by the Joint Commissioner of Central Excise (BRU) there was a discrepancy in respect of description of goods, number of shipping bills, etc. Accordingly, the applicant approached the BRU, seeking correction in the original brand rate letters. The BRU issued various letters correcting the original brand rate letter issued in respect of some of the subject shipping bills. 2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nowhere there is mention of Brand Rate for a specific period of time with the quantity restriction. The applicant s contention that the said circular is only in respect of fixation of the Brand Rate for a specific period of time with the quantity restriction is generally valid up to one year. 2.6 Consequently, show cause notice was issued to the applicants seeking explanation as to why the above claims should not be rejected and the payment of drawback should not be disallowed in terms of Clause 3(d)(ii) of Circular No. 14/2003, dated March 6, 2003. 2.7 The original adjudicating authority rejected the above-mentioned rebate claims. 3. On being aggrieved by the impugned order-in-original, the applicant preferred an appeal before the jurisdictional Commissioner (Appeals) who after due consideration of the submissions as made therein, rejected the appeal. 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 That drawback claimed by the applicants are rejected on the sole ground that in terms of clause 3(d)(ii) of Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven up to 31st August or a case to case basis on written request made by the exporter. This was also laid down in Para 2.1 of Circular No. 21/94-Cus., dated 15-9-1994. 2. Requests to relax this practice have been received in the Board from time to time from individual exporters as well as from export promotion councils. 3. The issue has been examined and it has been decided that brand rate letters will now be issued with a validity of one year. However, in those cases where All Industry Rate also constitutes an element of the brand rate, the validity of the brand rate letter shall be restricted to 31st May (or any other date on which the extant Drawback Schedule is superseded) as the All Industry Rates of Drawback are liable to change normally with effect from 1st of June, but in such cases further extension in the validity of the brand rate letter may be granted up to 31st August in accordance with the present practice, on written requests to that effect by the exporters. 4.5 It is clear from the aforesaid that before the issue of the said circular, the practice of the board was to restrict the validity of the brand rate letter up to 31st May, every year as new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. reported in 2001 (130) E.L.T. 193 cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as assessee in a quandary. In view of the aforesaid submissions, it is submitted that once Nhava Sheva Commissionerate has already granted drawback claims in identical circumstances, it is not open for the department to reject the drawback claimed in the similar circumstances by placing a different interpretation of Circular dated 6-3-2003. 4.8 That the contention of the department relating to the validity of BRLs is assumed to be correct even then BRLs issued in respect of shipping bill Nos. 7709640, 7712768, 7712911 and 7714724 were submitted within one year from the date of issue. That following are the details of the shipping bills and their corresponding brand rate letters and the date on which they were filed are given herein below : Shipping Bill Nos. Date of Brand Rate Letters Date of Filing 7709640 29-5-2007 10-6-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made a new ground in 4.8 above that four shipping bills drawback claims are not time-barred but this point has never been raised before any of the lower authorities till this stage of the case and also there is no fresh evidence of confirmatory nature in support of this ground which was never on record and the part of proceedings till now. Therefore, Government is not inclined to consider this point and/or any practice followed by any other Commissionerate in any other case specifically when the relevant original records in complete form are not available before this authority. 8. Government, therefore takes up that the factual data, dates and other details of the impugned exports as on record which are not in dispute. The basic and core issue to be decided herein that about the interpretetion and thus applicability of clause 3(d)(ii) of CBEC Circular No. 14/2003, dated 6-3-2003 which reads as under : Validity of Brand Rate Letter : The brand rate may be applied/fixed either in respect of Shipping Bills or for a period of time with a quantity restriction (which is required to be fixed on the basis of availability of the duty paid inputs). Generally, the validity of the bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed religiously in proper perspective. When the whole case matter is examined as above then Government finds itself in conformity with the views of lower authorities that this applicable circular nowhere excludes the status of validity of Brand Rate Letters in respect of Shipping Bill or otherwise and the restriction of one year is a binding for all kinds of Brand Rate Letters except in a case when Brand Rate is calculated by taking into account All Industry Rate of Drawback admissible for any of the input which is not the subject matter herein. Further, Government does not find any legality so as to override and negate the above applicable Statute. The applicant in his grounds is either trying to circumvent the exact status of impugned claims or is citing examples/cases which are not directly/mandatorily applicable for the case matter and proceedings herein. 11. Government therefore does not find any merits in the submitted grounds of the applicant here either to exclude this case matter from the purview of above said circular dated 3-6-2003 or to consider the same under any other provisions of law otherwise. 12. Revision application thus stands rejected being devoid o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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