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TMI Blog2013 (10) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 bearing Let Export Order dated 27-4-2006. However, the department returned their application vide letter dated 8-9-2007 on the grounds that they were not the proper authority and directed them to file the same with the Development Commissioner. After communication with the Development Commissioner, they filed revised application with the JAC vide letter dated 20-9-2007. The department was of the 'view that para (viii) of Circular No. 14/2003-Cus., dated 6-3-2003 prescribes a time limit of 60 days, with extended period of 30 days after condonation from the date of Let Export Order, for fixing of Brand Rate of Drawback. The drawback application for the month of April, 2006 was filed on 21-9-2007, therefore a show cause notice dated 28-6-2010 was issued to the applicants for rejection of their application on the grounds of limitation. On identical issues including the above, 19 show cause notices were issued to the applicants for rejection of their other drawback applications on grounds of limitation. All the aforementioned 19 SCNs have been decided by the adjudicating authority vide one single common impugned Order-in-Original, wherein he has dropped the SCN proceedings on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exports effected by the applicant as deemed export. Thereafter, the applicant got engaged with the correspondence with all the concerned departments and after rigorous follow up the letter was issued by TRU on 9-4-2009. Further, the non-application of department has not ended there, but the department issued the impugned 22 Show Cause Notices by construing the monthly resubmitted application on 27-9-2007 onwards as dated of application even without referring to the earlier communications and the original applications which are preferred by applicant on 10-6-2006, 13-6-2006. At the time of adjudication of the 19 Show Cause Notices, the original adjudicating authority has observed that the impugned Show Cause Notices have been issued without considering the date of applicant's first applications. Thus, the original adjudicating authority has correctly set aside the impugned Show Cause Notices by observing that there are latches and delays and misunderstanding on the part of department while handling the issue. Therefore, the benefit which is due to the applicant should not be denied. 4.2 The applicant is entitled for fixation of brand rate for duty drawback since applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment should have filed an appeal on 15-9-2011 and not on 26-9-2011. 4.4 The impugned order of lower appellate authority is non est at being passed without jurisdiction. In case of applicant, the order passed by original adjudicating authority was under DBK Rules and the appeal against the said Order-in-Original of adjudicating authority lies before the Government of India as per Rule 6 of DBK Rules under sub-rule (3) empowers only Central Government to consider or reconsider the order passed under Rule 6 by original adjudicating authority, therefore, impugned order passed by lower appellate authority is unsustainable on the ground of jurisdiction in the light of following judgments : * Deepak Agro Foods v. State of Rajasthan - 2008 (228) E.L.T. 510 (S.C.) = 2009 (16) S.T.R. 518 (S.C.) 5. Personal hearing was scheduled in this case on 7-8-2013 and 15-10-2013. Hearing held on 7-8-2013 at Mumbai was attended by Shri H.G. Dharmadhikari, Advocate, on behalf of the applicant, who reiterated the grounds of revision application. Further, hearing held on 15-10-2013 was attended by Shri Jagannathachari, DGM (Finance) and Shri D.A. Bhalerao, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Bills or a period of time, Brand Rate may be fixed excluding only the Shipping Bill/period which stands time-barred." The above said circular makes it unambiguous that application for brand rate may be filed within 90 days including 30 days condonable period. This has further been confirmed by the C.B.E. & C. vide DOF letter No. 603/32/2003-DBK dated 9-12-2003. In view of this, Government finds that the original authority had erred in holding that there is no time limit prescribed for filing of drawback applications under Rule 6 or 7 of the DBK Rules, 1995. As discussed in above para, 90 days from the date of LEO is the stipulated time limit for filing application for fixation of brand rate of drawback. 8.1 Government finds that initially the applicant filed application for fixation of brand rate on 13-6-2006 with reference to Shipping Bill No. 4226170 which was given LEO on 27-4-2006 i.e. within 60 days time from date of LEO as stipulated in above said Board's Circular dated 6-3-2003. The said application was returned by the jurisdictional Customs authority by stating that Development Commissioner is proper authority for claiming drawback in their case. After receipt of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which rebate claim was initially filed. (i) CCE, Delhi-I v. Aryan Export & Ind. - 2005 (192) E.L.T. 89 (DEL.) (ii) A Tosh & Sons Pvt. Ltd. v. ACCE - 1992 (60) E.L.T. 220 (Cal.) (iii) CCE, Bolpur v. Bhandiguri Tea Estate - 2001 (134) E.L.T. 116 (T. Kol.) (iv) Good Year India Ltd. v. CCE, Delhi - 2002 (150) E.L.T. 331 (T.-Del.) (v) CCE, Pune-I v. Motherson Sumi Systems Ltd. - 2009 (247) E.L.T., 541 (T. Mum.) = 2011 (22) S.T.R. 496 (Tribunal). Government of India has also held in a case of M/s. IOC Ltd. reported as 2007 (220) E.L.T. 609 (GOI) as under :- "Rebate limitation-Relevant date-time Limit to be computed from the date on which refund/rebate claim was initially filed and not from the date on which rebate claim after remaining defects was submitted under section 11B of Central Excise Act, 1944." Government notes that the provision of time limitation in Drawback Rules are pari materia with time limitation provisions in rebate claims as stipulated in Section 11B of Central Excise Act, 1944. Government is of considered view that the ratio of said case laws is squarely applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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