9911796707
TMI Blog2023 (2) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... es through issuance of any amendment, addendum or corrigendum to the brand rate letters issued. As such, the interpretation of the relevant portion of the above Circular spelt out in the impugned order in the appeal is flawed and improper. The Revisional Authority, therefore, held that the re-fixation of the brand rates was just and proper and that the orders of the Commissioner were within the jurisdiction. In the present case, the re-fixation of brand rates has not been carried out by the Ministry upon complaint or on the investigation; therefore, clause 3(d) does not arise in the present case, nor is stated so by the Revisional Authority. It is found that the reasoning of the Revisional Authority on the aspect of jurisdiction is entirely unsatisfactory. Apart from the facts of the individual case, when the question of the power of authority comes up for consideration, it has to be dealt with carefully as it sets a precedent to the authorities below and, therefore, the Revisional Authority was under a duty to scrutinize this aspect carefully. Except referring to the language of the Circular dated 18 September 2003, the Revisional Authority has not examined whether any amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 June 2012. As stated earlier, these brand rates were fixed, exercising power under Rule 7 of the Rules of 1995. 4. In the exercise carried out on 27 and 28 June 2013, Respondent No.4 changed the brand rates originally sanctioned and re-fixed the same. The change was for the period from 28 February 2011 to 31 March 2011. Thus, the sanctioned drawback was reduced from Rs.13,52,795/- to Rs.9,87,323/- in respect of the period from 28 February 2011 to 31 March 2011, from Rs.2,89,72,517/- to Rs.1,44,42,367/- in respect of the period from 4 October 2011 to 31 March 2012 and from Rs.3,14,22,391/- to Rs.2,15,65,416/- in respect of the period from 15 March 2011 to 14 March 2012. 5. Being aggrieved by the re-fixation of brand rates by Respondent No.4, the Petitioner filed three appeals before the Commissioner of Central Excise (Appeals) bearing Nos.195/2013, 197/2013, and 199/2013. The Petitioner challenged the order refixing the brand rates on the ground of lack of jurisdiction in Respondent No.4 to re-fix/ revise the brand rates and without prejudice on the merits of the re-fixation/ revision. The Commissioner (Appeals), by order dated 29 January 2014, allowed all three appeals. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that the re-fixation of brand rates by the impugned letters was not permissible in law, and it amounts to a review of its own orders by the Respondent. The Respondent had contended that the re-fixation of the brand rates was done as per Rule 16 of the Rules of 1995 and is therefore correct as per law. The Commissioner (Appeals) observed that under Rule 16 of the Rules of 1995, power has been conferred upon the proper officer of Customs as this Rule will come into operation only when any amount of drawback or interest has been paid erroneously. The drawback is paid by the officers of Customs under the provisions of the Act, and the fixation of brand rates under Rule 7 of the Rules of 1995 is done by the Central Excise Officer having jurisdiction over the manufacturing unit. The Commissioner (Appeals) found that the Commissioner could not have traced the power under Rule 16 of the Rules of 1995 and that his contention in this regard was not tenable. The Petitioner had also contended that under Rule 7(4) of the Rules of 1995, the power to withdraw the rate or amount of drawback determined under Rule 7(2) of the Rules of 1995 is vested only in the Central Government and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n decided that proposals for fixation of brand rate involving duty drawback of more than Rs. 5 lacs, shall be approved by the Additional/Joint Commissioner of Central Excise without any limit. In other words, no proposal for fixation of brand rate of drawback shall be submitted to the Commissioner of Central Excise for approval. (d) Scope of rules 6(3) and 7(4) of the Customs and Central Excise Duties Drawback Rules, 1995. It is clarified that the powers of Ministry expounded in rules 6(3) and 7(4) of the Customs and Central Excise Duties Drawback Rules, 1995 are envisaged to be exercised on rare occasions. Only in those cases, where the Ministry gets the information through some complaints or pursuant to an investigation that the drawback rate has been incorrectly determined or the rate letter has been improperly or irregularly issued, the Ministry, in such cases, shall suo motu proceed to revoke the rate letters in question and order recovery of duty drawback amount .. x x x The Revisional Authority has referred to Circular No.83/2003, dated 18 September 2003, on the aspect of jurisdiction and observed that the clarification given in para (c) of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those cases, where the Ministry gets the information through some complaints or pursuant to an investigation that the drawback rate has been incorrectly determined or the rate letter has been improperly or irregularly issued, the Ministry, in such cases, shall suo moto proceed to revoke the rate letters in question and order recovery of duty drawback amount. 13. In the present case, the re-fixation of brand rates has not been carried out by the Ministry upon complaint or on the investigation; therefore, clause 3(d) does not arise in the present case, nor is stated so by the Revisional Authority. 14. The reasoning of the Revisional Authority as above would show that reference is made to only clause 3(c). The learned counsel for the Petitioner pointed out that even under clause 3(c), the power is only limited where only there can be an amendment, addendum or corrigendum to the brand rates and not a complete change as sought to be done in the present case. It is also contended that this amendment, addendum or corrigendum can be carried out based on post-audit as prescribed in para-3(d)(ix) of Circular No.14/2003, and there is no reference in the order of any post-audit be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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