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TMI Blog2005 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ade under claim for duty draw back by M/s. Mohan Exports (India) Ltd., who are the merchant exporters. Being aggrieved, the appellants approached the Commissioner (Appeals) on the ground of mis-interpretation of Rules who observed that, from the Shipping Bill submitted by them as proof of export, it was noticed that the goods in question were exported by one M/s. Mohan Exports (India) Ltd., New Delhi, and under the claim of duty drawback. The Commissioner (Appeals) relied upon the decision of this Tribunal in the case of CCE v. Gavs Laboratories Pvt. Ltd. - 1994 (71) E.L.T. 717 (T). It was observed by the Tribunal that from the Shipping Bills and the agreement it was evident that goods were actually exported by UIL. The goods although manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished manufacturer is entitled to refund of Modvat credit. 3. On the other hand, the learned JDR, relies upon the case of CCE, New Delhi v. Gavs Laboratories (P) Ltd., 1994 (71) E.L.T. 717 (T), to support his contention. In this case, it was found that the goods were actually exported by Usha Intercontinental and were so shipped in their name as per the shipping bill and the terms of the contract. Further, the goods, although manufactured and cleared under Bond by M/s. Gavs Laboratories, were actually sold by them within India to M/s. Usha Intercontinental. Therefore, it was held that the former were only the manufacturers (and not the exporters) of the goods. 4. The learned JDR also points out the declaration as contained in Form-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of such duty." 7. The learned Advocate sticks to his stand. According to him, the said Proviso is applicable only in respect of the drawback claims made by the manufacturer and in this case they have not made any drawback claim and if someone else had made such claim, it is not their concern. He distinguishes the provisions under the Drawback Rules, 1971 from those under Drawback Rules, 1995, which were the Rules prevalent at the material time. The learned JDR points out that conceptually the provisions under Drawback Rules are one and the same irrespective of the morphological changes being highlighted by the appellants. 8. I have carefully examined the case record and heard both sides. Accordingly, the merchant exporters have already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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