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TMI Blog2016 (3) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would not arise at all. Therefore, as the petitioners has availed the said benefits and removed exported excisable goods without payment of duty from the factory, the question of availing of any drawback in terms of the said Scheme is not at all justified. - Decided against the petitioner - Writ Petition No. 227 of 2009 - - - Dated:- 2-2-2016 - F. M. Reis And K. L. Wadane, JJ. For the Appellant : Mr S M Singbal, Adv For the Respondent : Mr C A Ferreira, Adv JUDGMENT ( Per F M Reis, J. ) Heard Shri S. M. Singbal, learned Counsel appearing for the Petitioner and Shri Ferreira, learned Counsel appearing for the Respondents. 2. The above Petition, inter alia, prays for a writ to quash and set aside the Order dated 29.01.2009, passed by the Joint Secretary to the Government of India, the Respondent no. 2 herein. 3. Briefly, the facts of the case as contended by the Petitioner are that the Petitioners are 100% EOU and are engaged, inter alia, in the manufacturer of zinc oxide which is mainly used in the tyre and paint industry and for that purpose, they have a factory at Plot no. 23, GDDIDC, Phase-III-A, Sancoale Industrial Estate, Zuarinagar, Goa. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus (N.T) . The Petitioners by letter dated 10.12.2004, had thereafter contended that Rule 19(2) has been issued under Central Excise Rules of 2002 and explained about movement of goods without payment of Central Excise Duty but, what the Petitioners are claiming as drawbacks of the Customs component. It was further contended that the restrictions imposed, if any, in Notification dated 01.04.2003 is about the applicability of the specific rate in goods of specified rate comprising of Customs as well as Central Excise Duties. The Petitioner contended that they were constantly reminding the Customs Authority with regard to their claim under the said drawback scheme. By letter dated 10.11.2005, the office of the Commissioner of Customs, returned to the Petitioner their drawback claims requiring the Petitioners to submit documents as mentioned therein. The Petitioners by their letter dated 08.12.2005, submitted a detailed reply to the said letter, inter alia, contending that their claim for drawback is not under the Brand Rate but under the All India Rate of drawback. The Petitioners by letter dated 08.12.2005 and 22.12.2005, again reminded the Respondent no. 5 to sanction the said dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso 2(e) is about rebate under Rule 18 of the Central Excise Rules and is not applicable in the goods where the input for manufacturer of export products are procured duty free and where Rule 19(2) of the Central Excise Rules which is specifically an exclusive proviso to nonavailability of All Industry Rates. It was further held that the reference to Notification dated 16.10.2000 which refers to Rule 57(f)(14) is completely out of context and is not applicable as the said Rules are not in vogue and the proviso 2(b) shall prevail. Being aggrieved by the said Order, the Petitioners preferred an Appeal under Section 128 of the Act before the Commissioner of Customs (Appeals). The Commissioner (Appeals) Central Excise Customs by Order dated 15.09.2006, rejected the Appeal filed by the Petitioner by upholding the Order in Original dated 02.05.2006 passed by the Respondent no. 5. By the said Order, the Respondent no. 3, inter alia, held that since the Petitioners have availed the benefit of Rule 19 of the Central Excise Rule 2002, they are not entitled for drawback rates as specified in the Table. The Petitioners thereafter filed a Revision Petition against the said Order under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was further pointed out that the Petition be rejected. 5. An affidavit in rejoinder was also filed by the Petitioners, inter alia, disputing the contentions of the Petitioners. 6. We have heard the learned Counsel appearing for the Petitioners as well as the learned Counsel appearing for the Respondents. 7. The main contention of the Petitioner is that the Petitioner is entitled for Customs drawback as, according to them, merely because they are not entitled to claim drawback on account of excise, it would not by itself disentitle the Petitioners from claiming drawback towards Customs duty. Shri Singbal, learned Counsel appearing for the Petitioners, has strenuously taken us through all the relevant provisions of the Rules and pointed out that the authorities below have misconstrued the Rues and have erroneously come to the conclusion that the rejection of the claim of the Petitioner for such drawback is justified. Learned Counsel further pointed out that the intention for introducing the drawback provisions is to achieve the object of the Government that no exported goods should suffer tax and it had always been the intention of the Government not to levy any tax or dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order. Learned Counsel has taken us through the relevant provisions and Rules that it is well settled that fiscal and taxation laws has to be strictly construed. It is further submitted that on perusal of the Petition, it is clearly admitted that the Petitioners have availed of the rebate towards the Central Excise and this itself disentitles the Petitioners from claiming any alleged drawback for Customs Duty. Learned Counsel further pointed out that the question of invoking the provisions of Section 75 of the said Act would not be applicable in the present case. Learned Counsel also submitted that the Petitioners have not paid any amount towards Customs Duty. Learned Counsel as such submits that there is no infirmity in the impugned Order and, consequently, the Petition deserves to be rejected. 9. We have considered the submissions of the learned Counsel and we have also gone through the records. The facts of the case suggests that the subject matter of the present case is with regard to three shipping bills dated 14.08.2004, 21.08.2004 and 03.09.2004 for export of zinc oxide. The Petitioners had manufactured such goods by availing the benefit of Rule 19(2) of the Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed facility under Rule 19(2) of the Central Excise Rules, 2002 and thereafter the All Industry Rate Drawback under S S No. 28.06 is claimed and admissibility of which is to be decided in the light of prohibition under Clause 2(f) of the Notification no. 26/2003-Cus (N.T) dated 01.04.2003. The applicant vide their submissions as interpretation of various Notifications/Circulars (Supra) which are both erstwhile and prospective in age (dates) has concluded the same in their favor whereas the adjudicating authority and the Commissioner (Appeals) have gone into direct application of simple and plain meaning of the wordings of statute of All Industry Rate Drawback schedule along with clause 2(f) of the Notification no. 26/2003-Cus (N.T) dated 01.04.2003. 7. 8. Govt. notes in this case that the respondent are claiming two different Schemes i.e. procedure under Rule 19(2) of the Central Excise Rules, 2002 for (procurement/utilization of inputs) in manufacturing of the product/commodity and All Industry Rate DBK Scheme for claiming Export benefits of Customs portion of that very product/commodity. Such specific provisions are nowhere provided in any of the statutes under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the Notification no. 26/2003, relied upon by the Petitioner, it clearly shows that such Notification has been issued in exercise of powers conferred by Rule 3 read with Rule 4 of the Customs and Central Excise Duties Drawback Rules 1995. In General Notes 2, it is specifically provides thus: 2. The rates of drawback specified in the said Table shall not be applicable to export of a commodity or product if such commodity or product is- (a) manufactured partly or wholly in a warehouse under section 65 of the Customs Act, 1962 (52 of 1962), (b) manufactured or exported in discharge of export obligation against an Advance Licence issued under the Duty Exemption Scheme of the relevant Export and Import Policy: Provided that where exports are made against Advance Licences issued on or after 1st April, 1997, in discharge of export obligations in terms of notification no. 31/97-Customs, dated the 1st April, 1997, or against Duty Free Replenishment Certificate Licence issued in terms of notification no. 48/2000-Customs, dated the 25th April 2000, or against Duty Free Replenishment Certificate Licence issued in terms of notification no. 46/2002- Customs, dated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have to be strictly construed. The Courts cannot read words into such proviso. The exercise submitted by Mr. Singbal, learned Counsel appearing for the Petitioners, to bifurcate the nonapplicability of the said Notification into the claims towards customs allocation, cannot be accepted. This exercise would be totally in contravention of the very Notification no. 26/2003. Para 3 of the Circular dated 06.10.2003 relied upon by Mr. Singbal, learned Counsel appearing for the Petitioners, cannot be read in isolation when Para 4 of the Circular clearly provides that while allowing drawbacks, it should be ensured that the exporters do not avail all the facility under Rule 19(2) of the Central Excise Rules of 2002. Once it is not disputed that the Petitioners have availed of the benefits under Rule 19(2) of the said Central and Excise Rules of 2002, the question of availing any drawbacks in terms of the subject Notification would not arise at all. The reliance of Mr. Singbal, learned Counsel appearing for the Petitioners in the Judgment of the Apex Court reported in 1988 LawSuit (SC) 666 in the case of Collector of Central Excise, Bombay-L vs. Parle Exports (P) Ltd. would not at all be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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