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TMI Blog2011 (9) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... erials. Since the applicants company was exempted unit no benefit of Cenvat/Modvat was availed. Subsequently the applicants company has been converted from DTA unit to a 100% EOU and the time taken for such conversion was nearly three months. During this period of conversion from DTA to EOU there is continuous manufacturing process in the plant that cannot be stopped. The applicants were procuring raw materials/inputs which were duty paid during the interim period. The letter of permission (LOP) was obtained from the Government by the applicants on 13-8-2006 and License for Private Bonded Warehouse was granted on 2-11-2006 by the Customs Department. The applicants had filed three brand rate applications for fixing the Brand-Rate of duty Drawback claim before the Commissioner of Central Excise, Rajkot on 28-3-2007, 14-5-2007 and 4-7-2007, covering the raw materials received in their unit from 26-8-2006 to 5-2-2007. The said Applications were rejected by the Joint Commissioner, Brand Rate Unit, H.Q. Rajkot vide Order-in-Original No. 13/JC/2009, dated 9-3-2009 after discussing merits and factual present position/stands as on (100%) E.O.U. 3. Being aggrieved by the said Order-in-O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback scheme is to reimburse the duty paid on the inputs exported out of India, if not reimbursed. In the present case, the raw materials have suffered duty and the same has not been reimbursed to the applicants by way of Cenvat credit. Hence, the applicants are entitled to the benefit of Drawback. C.B.E. C. Circular No. 108/2003-Cus., dated 17-12-2003 and case law, 2001 (129) E.L.T. 273 (S.C.), M/s. K.R. Steel Union Ltd. supports this view and the same principle has been fallowed in M/s. Amritsar Swadeshi Textile Corp. (Pvt.) Ltd. in case No. 2008 (224) E.L.T. 415 (T-Bang.). 4.6 The Commissioner (Appeals) has erroneously distinguished the earlier order of the Commissioner (Appeals) in their favour. The reason for application for brand rate of Drawback was because the applicants are not entitled for All Industry Rate of Drawback. The fact is that even when the Order-in-Appeal dated 13-5-2009 was passed, the WOEG was covered by the AIR of Drawback and in any case, Commissioner (Appeals) has quite clearly discussed this aspect in para 7 of his order observing that :- The Lower authority relying this notification for rejecting the brand rate application filed under Rule 6 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) is of the view that Brand Rate under Rule 6 can be fixed only where All Industry Rate is not prescribed. This is clearly contrary to the letter and spirit of the Drawback Rules. 5.3 The Brand Rates can be fixed for rebating duties on such inputs which do not figure in relevant Advance Licence/DEEC Book and which have been procured by exporters indigenously or through import under the cover of proper duty paying documents i.e. Central Excise invoices or bills of entries, as the case may be, provided that the exporters do not avail of Cenvat facility in respect of the element of Central Excise duty or the Countervailing Duty (CVD) as the case may be (Emphasis supplied). Similarly, it has been clarified by the Board in Para 5 of Circular 13/2008-Cus., dated 29-8-2008 that brand rate of Drawback under Rule 6 or 7 can be fixed even in those cases where All Industry Rate is nil . 5.4 That Central Board of Excise Customs has accepted our claim for fixation of brand rate of duty Drawback under similar circumstances in the case of our another EOU at Daman. The said unit was also converted from a running DTA unit to a 100% EOU and the case related to fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not in dispute. Fact of the matter is that issue involved herein is to decide the eligibility of the applicant for getting the Brand Rate fixed for the purpose of reimbursement of duty paid inputs used in the manufacture of goods exported by them. The applicant herein is pleading that he is entitled to get the benefit of Brand Rate Drawback under Rule 6 of the Customs, Central Excise Duties Service Tax Drawback Rules, 1995. Government notes that the basic cause of dispute has been because the impugned unit manufacturing fully exempted parts of wind operated machinery has been converted from the DTA unit (working since 22-6-2006) into an 100% EOU vide a LOP dated 18-8-2006 issued by Development Commissioner, KASEZ and Customs licence for Private bonded warehouse issued on 2-11-2006. The impugned duty paid raw material was stated to be received between 26-8-2006 to 5-2-2007 (for which advance/prior orders were made as per their buffer stock/manufacturing policy) for their continuous production and export commitments. Government also notes that while the applicant is maintaining he had submitted relevant DBK-I, II III statements for verification but instead of conducting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after due perusal of the provisions of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 along with all the Notification/Circular and cited case laws appearing till this stage of the case observes that the purpose of Section 75 of Customs Act, 1962 and Rules made thereunder specifically Rules 2(a) 3(1)(c) of above Drawback Rules, 1995 is that in principle any duty or tax if stand paid has to be rebated for the export goods in such manner and at such rate as may be determined by Central Government. The further provisions of All Industry Rate Drawback Rate under Rules 3 4 of Drawback Rules, 1995 and all the above cited Notification/Circular are for the purpose of further carrying on the above policy of the Government. There are specific exclusion clauses including the condition 7(a) of Notification No. 81/2006-Cus. (N.T.), dated 13-7-2006, mentioned at respective places but nowhere such a situation of deciding the fate of conversion period of DTA to EOU (in the circumstances as of this case) has been provided. Further Rules 6 has the provisions where amount of Rate of Drawback has not been determined and Rule 7 is for cases where determined rate of Drawb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authorities to process the impugned Brand Rate Applications on merits under Rule 6 of the Duty Drawback Rules read with relevant Notifications. However Government notes that this order dated 13-5-2009 of Commissioner (Appeals) was accepted by the department as no appeal/revision were filed against the said order. 12. Here in a situation as above Government observes Hon ble Supreme Court in the case of Amrit Paper v. Commissioner of Central Excise, Ludhiana reported in 2006 (200) E.L.T. 365 (S.C.) has held that primacy to a notification cannot be given over rules as such interpretation will render statutory provisions in rules nugatory and in the case of Commissioner of Trade Tax, UP v. Kajaria Ceramics Ltd. reported as 2005 (191) E.L.T. 20 (S.C.) has held on the issue of interpretation of statutes that context and parameters of statutory provisions under which a notification is issued, are to be read into it and when a notification is issued under one statutory provisions for same purpose as a chain of progress without overlapping, the ambiguity of contents of such notification can be resolved by referring not only to statutory provisions but also to previous and subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artly or wholly in a warehouse under Section 65 of Customs Act, 1962. The plain reading of this exclusion clause/condition reveals that rate of drawback specified in the schedule are not applicable to product manufactured in warehouse licenced under Section 65. But it does not put any bar on fixation of brand rate under Rule 6 of said Drawback Rules, 1995. Government while following the principles laid down in the conclusions of cited case laws, finds the referred Order-in-Appeal Nos. 419-420(358-359)-RAJ/2009, dated 13-5-2009 as legal and proper and therefore is in conformity with the view taken in said order. Government also notes that applicant herein has neither any option and there is no other express statutory provisions to reimburse the duty incidence stated to be borne on the raw materials used in the manufacture of export goods in the facts and circumstances of the instant case. Therefore, Government is of considered view that in the instant case applicant is entitled for fixation of brand rate of drawback under Rule 6 of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 , in respect of duty paid inputs/raw materials used in manufacture of exported g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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