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TMI Blog2012 (12) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner of Central Excise, Pune-lll Commissionerate. It was noticed that All Industry Drawback rates had indeed been notified in respect of the goods exported by M/S Cummins India Ltd. under Rule 3 of the Drawback Rules, vide Notification No. 36/2005-cus dated 02.05.2005 with effect from 05.05.2005. Rather, they filed for determination of drawback rates under rule 6(1)(a) and the rates were determined by the jurisdictional Commissioner under Rule 6(1)(b) of the Drawback Rules. Resort to Rule 6(1)(a) is envisaged by the Drawback Rules only where no amount or rate of drawback has been determined in respect of any goods in terms of Rule 3 ibid.-However, there is an exception to the General rule of rule 3 ibid, as provided in Rule 7, which is for cases where amount or rate of drawback determined is low for determination of the amount or rate of drawback thereof stating all relevant facts including the proportion in which the materials or components or input services are used in the production or manufacture of goods and the duties or taxes paid on such raw materials or components or input services. Thus, even if All Industry Drawback rates had been notified in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Shipping Bill covered and supplementary claim. 3. On being aggrieved of above the applicant filed appeals before Commissioner Central Excise (Appeals) who after due considerations of submissions as made therein allowed the appeals. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this Revision Application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds:- 4.1 The exporters have received drawback at the rate under Rule 6 as per brand rate letters issued by the jurisdictional Central Excise Commissionerate from time to time. No supplementary claim was ever filed by them before adjudication order was passed on 21.3.2011, for Shipping Bills pertaining to the year 2005, 2006 and 2007 etc. It was only after the order was passed by the Commissioner that the exporters suddenly realized that the amount received by them through Brand rate letters is less than the All Industry Rate; this prompted them to file supplementary drawback claim in March 2011. This shows that the supplementary claims have not been filed within the time limit stipulated by the Drawback Rules and so rightly rejected; 4.2 In the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05, 2006 and 2007 etc. were presented for supplementary claims in the year 2001 was beyond the scope of any relaxation in the time limit stipulated for submission of supplementary claim. Further Rule 17 empowers only the Central Government to grant any relaxation/condonation to the exporter. In view of the above facts of the case, it will be incorrect to hold the date of the Order-in-Original i.e., 21.03.2011 as the relevant date for filing supplementary claims or within three months of that date as claimed by the exporters. Therefore, the Order-in-Appeal No. GOA/CUS/GSK/57/2011 dated 09.11.2011 passed by the Commissioner (Appeals) to the effect that the supplementary claims filed by the exporters be admitted and processed, appears to be not just, proper and hence, the same may be set aside by the Central Government. 5. Show Cause Notice was issued to the respondent under Section 129DD of Customs Act, 1962 to file their counter reply. The respondent vide their letter dated 18.05.2012 has made the following cross-objections:- 5.1 The respondents were issued the Brand Rate of duty drawback on the basis of which the respondents were sanctioned with drawback. The Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the respondents are entitled for drawback only under Rule 3, i.e. All Industry Rate of Drawback. Hence, the application filed by the respondents cannot be treated as time barred. 5.4 The order dated 21.03.2011 passed by the Commissioner, in fact, categorically holds that the respondents are entitled to drawback in terms of Rule 3 alone. That being so, in respect of all exports made by the respondents during the period, there is a determination of drawback by the Commissioner vides order dated 21.03.2011. It is a different matter, that in respect of the exports covered by the supplementary claim no recovery is proposed since in respect of those exports covered by the supplementary claim, the drawback sanctioned was lower than the drawback available under Rule 3, Hence, Supplementary claim dated 22.03.2011 i not time barred. Department is travelling beyond scope of order dated 01.0 2011 and is not following object of the Drawback schemes. 6. Personal hearing in this case was scheduled for 08.10.2012. Shri B.C. Sahu, Assistant Commissioner, Pune Customs attended hearing on behalf of applicant department and re-itrated the facts/submissions as made so far in the matter. Shri Rach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.10.2010, dated 25.10.2010 and dated 03.12.2010 and adjudicated vide order dated. According to the custom department, we are not entitled to file application under Rule 6 and we are entitled for drawback under All Industry Rate only. According to us, the drawback sanctioned in respect of Shipping Bills mentioned in application, under Rule 6 is lower than the all industry rate of drawback According to us, we are entitled to drawback under Rule 3 (i.e. all industry rate of drawback)" From above what transpires is that it is a fact on record that department had initiated proceedings only in respect of those Shipping Bills where the claimed amounts of drawback was more then the amount as calculated at the then applicable All Industry Rate under Rule 3 of drawback Rules, 1995. Therefore legally speaking those shipping where amount claimed was less then amounts @ AIR under rule 3 were not the subject matter of said proceedings which were concluded on 21.03.2011. Hence, Government agrees that the claims attracts the provisions of time limitation as provided under proviso (i) to Rule 15(1) of the Drawback Rules, 1995. This provided time limit of three months could have been extend ..... 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