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TMI Blog2015 (1) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... he one hand accepted that applicant has availed drawback of customs portion and rebate claim was admissible but on the other 'upheld rejection of rebate claim as applicant had availed DBK of custom portion @12% which is factually incorrect as claimed by applicant. - Matter remanded back - Decided in favour of assessee. - F. No.195/1271/12-RA - 245-14-cx - Dated:- 20-5-2014 - Shri. D. P. Singh, Joint Secretary This revision application is filed by M/s Tolia Overseas, Thane against the order in-appeal No.BC/161/M-III/2012-13 dated 29.6.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III with respect to order-in-original dated 22.06.2011 passed by Additional Commissioner, Central Excise, Mumbai-III. 2. Brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2. Prior to 30.9 11 they were exporting the said goods under DEPB Scheme, the declaration in the ARE-1 which says I/We hereby declare that the export is in discharge of the export obligation under a Quantity Based Advance Licence/Underclaim of Duty Drawback under Customs Central Excise Duties Drawback Rules, 1995 was struck off. The ARE-1 forms are generated on the computer system with the help of precluded software. This software and the forms that are generated contained the declarations at the foot of the form. 2.3 After the withdrawal of the DEPB scheme, they started exporting their goods under a claim for duty drawback. However, the ARE-1 forms were generated on the basis of precluded, software and. contains the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel falling under Chapter 732620 and Forged Steel Balls of Stainless Steel balls falling under CSH 732621 and drawback rates for both items are different. From the same it will be seen that, respect of steel balls of Alloy steel, the rate of drawback is 4% of FOB value and drawback cap per unit is ₹ 7.2 per kg. In respect of steel balls of Stainless steel the rate of drawback is 4% of FOB value and drawback cap per unit is ₹ 12 per kg. The drawback is sanctioned of the 4% of the FOB value or the quantity of steel balls exported multiplied by ₹ 7.2 or ₹ 12 per kg (as the case may be), whichever is lower. For better appreciation the Applicant had claimed drawback @ 4.00% of FOB value or ₹ 7.2 per kg in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 12/- per kg, whichever is lower. As per settled law, order traveling beyond show cause notice is not sustainable. Hence, the order passed by the Commissioner (Appeals) be set aside. 4.4 The Applicant submits that as can be seen from the above they had not claimed duty drawback @12% and also drawback claimed by them was sanctioned to them pertains to customs duty only. Therefore, they are entitled to claim the rebate of excise duty paid by them on final products. 4.5 The Applicant submits that for the subsequent periods on the similar facts, the rebate was sanctioned to them in view of clarification issued by the Chief Commissioner of Central Excise, Mumbai Zone-II vide their letter dt. F. NO.IV/16-16/CCO-II/MO(/2012 dt.8.5.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Now, the applicant has fled this revision application on grounds mentioned, in para. (4) above. 8. In this case applicant has contended that the AIR of drawback for said goods is same in both the columns of DBK schedule, i.e. when facility of cenvat credit availed and also when facility of cenvat credit not availed. Under such circumstances in terms of notification No.68/2011-Cus(NT), if the rate indicated is the same in both the columns, it shall mean that the same pertain to only customs components and is available irrespective of whether the exporter has availed of cenvat or not. Government finds that the above said condition (6) of the said notification No.68/2011-Cus (NT) clearly states that if AIR in both the columns is the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reference. Para (6) of the Notification No. 84/2010 - The figures shown under the drawback rate and drawback cap appearing below the column Drawback when Cenvat facility has not been availed refer to the total drawback (customs, central excise and service tax component put together) allowable and those appearing under the column Drawback when Cenvat facility has been availed refer to the drawback allowable under the customs component. The difference between the two columns refers to the central excise and service tax component of drawback. If the rate indicated is the same in both the columns; it shall mean that the same pertains to only customs component and is available irrespective of whether the exporter has availe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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