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TMI Blog2019 (6) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, is to avoid a double benefit in the hands of the exporter/manufacturer of those goods. The duty draw back is allowed for giving incentive to the export to the extent of Excise component only to the extent of Excise duty actually suffered by the goods in question. Since admittedly the appellant M/s. Big Bags International Private Limited in the present case has not purchased the bags in question from the open market but has purchased the same from the manufacturer M/s. Bishan Saroop Kishan Agro Industries (P) Ltd., directly, who has been granted Cenvat credit in respect of the bags in question, the duty draw back available to the exporter was liable to be reduced to that extent - In the absence of any proof of such non availment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd., had availed Cenvat credit under the relevant excise rules and in view of such Cenvat credit having been availed by the manufacturer, the exporter M/s. Big Bags International Private Limited was not entitled to the higher duty draw back in terms of Clause 13 of the Notification No. 103/2008- Cus (NT) dated 29th August 2008. 3 . The purpose and reason for not allowing the higher rate duty draw back of custom duty is not to allow the double benefit in the hands of the exporter, since the manufacturer of those goods had already availed the Cenvat credit under the relevant Excise law. The relevant portion of the impugned order passed by the learned Tribunal is quoted below for ready reference:- 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also the final product rebate) shall be taken against the Shipping Bills under which they are exporting the goods. The merchant exporters who purchase goods from traders may therefore furnish the declaration, at the time of export, in the format annexed with this circular. This is issued in supersession of para (vi) of Circular No. 64/98-Cus. Dated 01.09.1998. After perusing the Circular and paragraph- 7 of the above circular, it is easily seen that the circular has clarified the payment of drawback in respect of the goods which are purchased by merchant exporters from traders in the local market. There is a presumption that the goods available in the market are deemed to be duty paid. But in the facts of the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute, we are of the view that the appellant will not be entitled to the excise portion of AIR. In view of the above, we find no reason to interfere with the impugned order and the same is sustained. All the appeals are rejected. 4. The learned counsel for the appellant Mr.V.Srikanth urged before us that the exporter M/s. Big Bags International Private Limited had not claimed any Cenvat credit in his own hands and therefore, the benefit of duty draw back at higher AIR rate which was earlier given to the Assessee/Appellant could not have been withdrawn by the respondent Department authorities. He further drew our attention to another Circular No. 16/2009- Cus dated 25th May 2009 applicable to the merchant export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of Excise duty actually suffered by the goods in question. If the Cenvat credit is availed by the manufacturer of such goods, in respect of Excise duty paid on the raw materials or inputs for manufacture of those goods, then the duty draw back is liable to be reduced under the Notification in question, namely, Notification No.103 of 2008 dated 29th August 2008 which is applicable to the facts of the present case. 8. Since admittedly the appellant M/s. Big Bags International Private Limited in the present case has not purchased the bags in question from the open market but has purchased the same from the manufacturer M/s. Bishan Saroop Kishan Agro Industries (P) Ltd., directly, who has been granted Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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