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TMI Blog2024 (1) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Appellate authority nor before the revisional authority nor in the affidavit-in-opposition to the writ petition with regard to petitioner s statutory and legal right of availing the benefit of Drawback in question on the basis of aforesaid notification dated 22nd November, 2001, issued by the DGFT authority, is not sustainable since there can be concession on fact and not on law and further petitioner has not accepted the same and has challenged the order-in-original before the Appellate authority. Petitioner is entitled to avail the benefit of Drawback under the Notification No. 39(RE-01)/1997-2002, New Delhi dated 22nd November, 2001 issued by the DGFT (Government of India, Ministry of Finance) issued in exercise of powers conferred under paragraph 4.11 of the Export and Import Policy 1997-2002, relating to Duty Drawback for the period from 01.06.2000 to 31.03.2001, since it has fulfilled all the criteria of the aforesaid notification which has statutory force. The petition is disposed of by upholding the order of the Appellate authority and setting aside the impugned order of the revisional authority. No order as to costs. - HON BLE MR. JUSTICE MD. NIZAMUDDIN For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revisional authority dated 20th December, 2019 allowing the revisional application of the respondents customs authority against the order of Commissioner of Customs (Appeals), Kolkata allowing the appeal of the petitioner by holding in its favour by setting aside the order-in-original raising the deemed of Rs. 10,23,000/- towards Duty Drawback, on the ground that the same was erroneously allowed by the Appellate authority to the petitioner being 100% EOU, is legal and valid? 4. By this writ petition, petitioner has challenged the legality and/or validity of the impugned Order dated December 20, 2019 passed by the Revisional Authority (Respondent No. 2) relating to the petitioner s drawback claims filed in respect of 22 shipping bills in question during the period from June, 2000 to August, 2000 setting aside order-in-appeal passed by the Commissioner of Customs (Appeals), Kolkata, which had held in favour of the appellant-writ petitioner by allowing the appeal of the petitioner. 5. Petitioner submits that petitioner is a 100% Export Oriented Unit (EOU), exported 22 consignments of tea during the period from June 02, 2000 to August 26, 2000 and claimed duty drawback on Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed by order-in- original dated September 06, 2004. After a series of proceedings the Revisional Authority (Respondent No. 2) vide order dated April 30, 2014 remanded the case back to the Commissioner (Appeals) (Respondent No. 3) for de-novo consideration. 11. Petitioner submits that the Commissioner (Appeals) while disposing the petitioner s appeal against the original order dated September 06, 2014 pursuant to the remand by the Revisional Authority by his order dated April 30, 2014 took note of the DGFT Notification dated November 22, 2001 wherein the specific rate of drawback on bulk tea for the period from June 01, 2000 to March 31, 2001 was specified at Rs. 2 per kg and the petitioner had been rightly granted the drawback for its 22 export consignments during the period from June 02, 2000 to August 26, 2000. Further the Commissioner (Appeals) also relied upon the Chartered Accountant s certificate issued in favour of the petitioner on February 14, 2017 which certifies that the petitioner had procured the said bulk tea of 22 consignments where excise duty was duly paid. In this regard, sample invoice raised on the petitioner showing purchase affected by paying duty has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts submit that as per Section 75 of the Customs Act, 1962 Drawback of All Industry Rates or AIR is sanctioned by the Ministry of Finance. These drawback rates are periodically notified from time to time by the Ministry through issue of Notifications. As per General Note No. 2 (c) of the Drawback Schedule notified by CBEC Notification No. 31/1999-Cus (N.T.) dated 20.05.1999 The rates of drawback shall not be applicable to export of any of the commodities/products if such commodity/product is manufactured and/or exported by a unit licensed as 100% EOU undertaking in terms of the relevant provisions of the Import and Export Police in force. Therefore, it is very clear that any item manufactured or exported by a Unit licensed as a hundred percent Export Oriented Unit is not eligible for duty drawback. The Customs Act debars the petitioner from getting the benefits. The policy decision taken by the Ministry of Commerce is not applicable in the facts of the case since the Customs Act debars the eligibility of the petitioner. 18. Respondents further submit that the DGFT vide Notification No. 39 (RE- 1)/1997-2002 dated 22.11.2001 prescribes that this rate shall be applicable only in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer. 23. Respondents submit that the Import Export policy is published by the Department of Commerce, Govt. of India while the Customs notification and entitlement is published by the Ministry of Finance. Hence, in absence of amendment of the provisions of the Customs Act, the petitioner cannot be entitled to such claim. 24. Respondents submit that no document has been annexed by the petitioner showing that the petitioner is the manufacturer of the product and has paid excise duty. The chartered accountant certificate is not correct and is misleading. The other challans are not matching with the procurement made by the petitioner. On this score also the petitioner failed to make out a case that the petitioner is otherwise eligible to get duty draw back. Hence there is no ground to interfere with the order of the revisional authority and the writ petition should be dismissed. 25. In rebuttal to the arguments advanced by the respondents during the course of hearing, petitioner submits as hereunder. 26. An altogether new case was sought to be set up by the respondents during the course of hearing before this writ Court when it was argued that the purported demands should be sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard is enforced. 32. Petitioner submits that a careful reading of both the notifications dated December 01, 1999 and November 22, 2001 issued by DGFT, which were specific to the issue, would clearly show that the 100% EOU is eligible for duty drawback in respect of bulk tea. There was no restriction against an EOU claiming drawback or additional condition which the writ petitioner was required to fulfil and the respondents had erred in acting contrary to the aforesaid notifications. 33. Petitioner submits that no reliance can be placed upon the general note 2(c) to Customs Notification No. 31/1999-Cus (NT) dated May 20, 1999. The said general note 2(c) is not applicable in the facts and circumstances of the present case when the DGFT has specifically issued two notifications with respect to grant of duty drawback of central excise on export of bulk tea. The said notifications relating to bulk tea are more specific notifications and would prevail over customs general notifications. The Customs Notification dated May 20, 1999 was issued earlier in tie and was issued under the Drawback Rules and not under the Customs Act. The said Customs notification has to be read along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the revisional authority dated 20th December, 2019 is not sustainable both in law and in fact and is liable to be set aside for the following reasons: (i) Admittedly petitioner is an 100% Export Oriented Unit (EOU). (ii) Admittedly petitioner has procured bulk tea from the manufacturer which has paid Excise on such goods and has not claimed Drawback. (iii) Admittedly deemed Export took place between the period 01.06.2000 to 31.03.2001. (iv) Revisional authority while passing the impugned order on the revisional application of the respondents customs authority setting aside the order of the Appellate authority which had allowed drawback in favour of the petitioner, has taken into consideration the ground which was no part of show cause notice or adjudication order or order of the Appellate authority. (v) Issue of concession by the petitioner s representative before the adjudicating authority, raised by the respondents customs authority for the first time in course of hearing of this writ petition which was neither before the Appellate authority nor before the revisional authority nor in the affidavit-in-opposition to the writ petition with regard to petitioner s statutory ..... 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