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TMI Blog2005 (3) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... Rubber Thread through Cochin port. For the period from 7-5-2002 to 3-2-2003, they exported the goods under claim for Drawback. There were in all 22 shipping bills. The total amount claimed was Rs. 78,10,667/-. The drawback rates were as mentioned in the Drawback Schedule (Sl. Nos. 40.05 and 40.06). There was intelligence that the appellants were claiming Duty Drawback on the basis of wrong declaration inasmuch as the export product suffers only negligible duty incidence on the materials used and substantial portion of the materials is indigenously produced on which no duty is paid. 97% by weight of the export product is constituted by Natural Rubber. The appellants used to import Natural Rubber without payment of duty under Advance Licensin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the rate only on the basis of a representation from a particular exporter. (ii) When the All Industry Rate is available, it is not necessary that the exporter should produce any evidence of duty incidence on his export product. (iii) Our attention was also invited to the Ministry's Circular No. 24/2001-Cus., dated 20-4-2001. The following paras from the Circular are extracted : "2. The issue has been examined in the Board. All Industry Rate is based on the concept of averages, wherein the drawback rate itself as well as its customs and excise portions are based on weighted averages of consumption of imported/indigenous inputs of a representative cross-section of exporters and the average incidence for duties suffered on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing case laws were relied on : (a) 1997 (91) E.L.T. 474 (GOI). In Re : Tube Investments of India, the GOI held that the Customs officers are not authorised to make any reduction from the rate of amount of drawback fixed. (b) 1991 (54) E.L.T. 3 (S.C.) - Chemicals Fibres of India Ltd. v. UOI. Para 8 of the order discusses about the fixation of Drawback Rate based on the industry averages. (c) 1991 (56) E.L.T. 280 (GOI) : In Re : Orissa Oil Industries - wherein it is held that Rule 3 of the Duty Drawback Rules does not say that on each and every material, duty should have been paid. If duty is paid only on some of the goods, which went into the manufacture of a final product notified as such in the Drawback Schedule, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Drawback is in order. (iii) The Kerala High Court, in the case of Premier Tyres Ltd. v. Assistant Collector Others - 1980 (6) E.L.T. 161 (Ker.), has held that if the exported goods had been manufactured out of articles on which no duty has been paid, no drawback was admissible thereon under the provisions of Section 75 of the Customs Act, 1962 read with Customs Central Excise Duties Drawback Rules, 1971. 6. We have heard the rival contentions. The term "Drawback" has a special meaning in Customs. As everyone knows when goods are imported, they are liable to Customs Duty. When goods are manufactured in India, they are liable to Central Excise Duty. In the case of a particular export product, both imported and indigenous goods may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidence of import duty on rubber. When rubber that constitute 97% of the export product, is not at all excisable, then there is no question of any duty incidence on the export product excepting the duty incidence on the remaining 3% of the product, which is insignificant as per the Commissioner's findings. The learned Advocate, after going through the second proviso to Rule 3, urged that the present case will not attract the mischief of the provision because the Natural Rubber procured by them indigenously is not at all excisable and the particular provision pointed out by the learned JCDR mentions only excisable materials. We are afraid that the interpretation of the learned Advocate is rather fallacious. It is clearly stated that no Dra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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