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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 ..... EOU could not claim duty Drawback on bulk tea in question procured by it from the bulk tea manufacturer and supplier which has admittedly paid the Excise Duty and that it is the supplier which is only entitled to claim duty Drawback and not the petitioner in spite of the fact that the said bulk tea manufacturer has not claimed the Duty Drawback on such deemed export which took place within the period from 01.06.2000 to 31.03.2001? (ii) Whether revisional authority is justified in passing the impugned order allowing the revisional application of the respondents customs authority by setting aside the order of the appellate authority holding in favour of the petitioner, on a new ground which was neither the part of the show cause notice, nor the part of the adjudication order nor the same was the case of the customs authority before the appellate authority? (iii) Whether submission of the respondents customs authority for the first time before this Court in course of hearing that petitioner's representative's concession on its statutory right of entitlement of such drawback in course of adjudication proceeding disentitles it to make such claim, is sustainable in law when nowher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit would be reimbursed by Development Commissioner of the concerned zone at all industry rates so long as levy on bulk tea in this regard is enforced." 7. Petitioner submits that on November 22, 2001, the DGFT issued Notification No. 39 (RE-01)/1997-2002 wherein the All Industry Rate of Duty Drawback for the period June 01, 2000 to March 31, 2001 was specified at Rs. 2 per kg. The Notification further stated that "This rate shall be applicable only in cases where excise duty has been paid on procurement of bulk tea by 100% Export Oriented Units and Units in Export Processing Zones, considered as deemed exports in terms of Chapter 10 of the Export and Import Policy 1997-2000". 8. Petitioner submits that the petitioner being a 100% EOU which exports tea, sought duty drawback in accordance with the said Notifications and the duty drawback amount of Rs. 10,23,000/- was duly granted to the petitioner by the department. 9. Petitioner submits that subsequently the Customs Department issued a show cause notice dated August 20, 2004 upon the petitioner for recovery of the said duty drawback of Rs. 10,23,000/-. In the said show cause notice there was only allegation that the relevant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the Commissioner's (Appeals) order dated February 16, 2017. 14. Petitioner submits that the impugned order dated December 20, 2019 passed by the Respondent No. 2 is outside the scope of the show cause notice dated August 20, 2004 and original order dated September 09, 2004. It is trite law that in Customs, Excise & Service Tax matters, the appellate or revisionary authority cannot go beyond the scope of show cause notice. The appellate authority in its order dated February 16, 2017 acknowledged the fact that the original case made out against the petitioner was confined to the allegations that "with effect from 01.06.2000 there was no duty drawback serial no. 40 under drawback serial no. 9.021 but the same was paid erroneously........". 15. Petitioner submits that the impugned order dated December 20, 2019 passed by the respondent no. 2 is wholly without jurisdiction and illegal since the said order is outside the scope of the show cause notice and original order. The impugned order of the revisional authority makes out a new case against the petitioner beyond the scope of show cause notice for the first time which is impermissible in law. 16. Petitioner relies on the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmissible to a 100% EOU unit in terms of General Notes 2 (c) of CBEC Notification No. 31/1999-Cus (N.T) dated 20.05.1999. Thus, the drawback in the instant case should have been claimed by the bulk tea manufacturer who has paid the excise duty and supplied the impugned goods to the petitioner who is a 100% EOU unit in terms of DGFT Notification No. 39 (RE-1)/1997-2002 dated 22.11.2001. 20. Respondents submit that during the course of hearing before the Adjudicating Authority the authorised representative of the petitioner agreed to return back the drawback amount within one month. Thus, the petitioner cannot contend that there has been non-consideration of any legal issue. 21. Respondents submit that the benefit of duty drawback as enabled under Section 75 of the Customs Act, 1962, is expressly and specifically made subject to the Rules framed thereunder and the further notification issued in the context of the implementation or operation of the provision. Therefore, when the notifications read with the Rules and the Section expressly deny the benefit of duty drawback in certain situations and in respect of certain goods, there is no question of the benefit being claimed or exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. 28. Contrary to what has been averred in the Affidavit-in-Opposition, there is no restriction in law that only the manufacturer is entitled to drawback and not a purchaser-EOU who procures on payment of applicable duties. On a plain reading of the concerned notifications, such position does not emerge. It is also submitted that no Wing of the Government should go against the Policy provisions, as held in State of Bihar -Vs- Suprabhat Steel, (1999) 1 SCC 31 (para 7). 29. Reliance was placed upon the judgment of this Calcutta High Court in the case of Ruia Cotex [374 ELT 39 (cal)] by the respondents, is highly misplaced. In the said case the issue was totally different. The Customs notification was issued subsequent to DGFT notification. In the instant case Customs notification existed when DGFT notification was issued and DGFT Notification was specifically given retrospective effect. 30. Petitioner submits that a careful reading of the DGFT Notification dated November 22, 2001 would show that EOUs have been specifically made eligible for receiving drawback in respect of bulk tea item. 31. Petitioner submits that the impugned order is erroneous in ignoring the Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble Karnataka High Court in the case of Karle International reported in 2012 (281) ELT 486 (Kar). The departmental SLP was dismissed by the Hon'ble Supreme Court against the said judgment (Commissioner -Vs- Karle International - 2015 (323) ELT 174 (SC)). Petitioner relies on a decision in the case of Union of India -Vs- Cosmo Films Ltd., 2023 SCC OnLine SC 518, wherein at paragraph no. 55, the Hon'ble Supreme Court has held that provisions of the Foreign Trade Policy are statutory in nature which are framed by the Union of India in exercise of statutory powers. 36. Petitioner submits that the impugned order dated December 20, 2019 denying the duty drawback claims of your petitioner in respect of the 22 shipping bills for the period June 02, 2000 to August 26, 2000 is contrary to the intention of the legislature. It has been the legislative intent to unburden export goods on tax. 37. Petitioner submits that the impugned order erred in ignoring the certificate furnished by a Chartered Accountant in support of the petitioner certifying that the petitioner has procured excise duty paid tea in respect of the subject shipping bills. The sample invoices and shipping bills cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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