Writ Petition No. 6672 of 2014. Case: Commissioner of Customs, Pune Vs Cummins India Ltd.. Bombay High Court

Case Number:Writ Petition No. 6672 of 2014
Party Name:Commissioner of Customs, Pune Vs Cummins India Ltd.
Counsel:For Appellant: Shri A.S. Rao, N.V. Kalantri, Adv. and For Respondent: Shri V. Sridharan, Senior Counsel with Prakash Shah, Adv.
Judges:S.C. Dharmadhikari and S.P. Deshmukh, JJ.
Issue:Service Tax
Citation:2015 (321) ELT 575 (Bom)
Judgement Date:March 09, 2015
Court:Bombay High Court
 
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Order:

  1. The Revenue has filed this writ petition under Article 226 of the Constitution of India by challenging the order passed by the revisional authority dated 8 July 2013 [2014 (303) E.L.T. 305 (GOI)] by which the revision application of the petitioner/applicant was dismissed.

  2. The revisional authority confirmed the findings recorded in the order of the appellate authority dated 12 July, 2012.

  3. Mr. Rao appearing in support of the petition submits that the department rightly initiated the proceedings for recovery of excess drawback duties of Customs paid under Rule 16 of the Drawback Rules by issuance of the notice of demand dated 9 May, 2011. That was to recover an amount of Rs. 22,12,56,455/- being amount of drawback claimed and received by the petitioner fraudulently. The petitioner's rightly faulted the respondent assessee for making declaration and stating in the proforma in the application at Sr. Nos. 9 and 10, factually wrong and incorrect particulars. They seem to suggest that the claims were under Rule 6(1)(a) and that the All Industry rates of drawback for the products under heading 8408 are not fixed/notified. Once these rates were notified then application under Rule 6(1) Clause (a) were not in order. Therefore, the demand was rightly confirmed by the adjudicating authority in the Order-in-Original. In that regard, he invites our attention to the findings in the Order-in-Original and particularly Paras 62 to 65 of the Order-in-Original. He also submits that IC Engines exported by Cummins India Ltd. during the said period were manufactured availing all facilities under duty exemption scheme. Exports of IC Engines so manufactured using duty free imported inputs under the advance licence were not eligible to drawback in terms of the conditions imposed under the brand rate letters. Mr. Rao, would therefore, submit that the Order-in-Original should have not been confirmed and the appellate and the revisional authority have seriously erred in law in confirming the same.

  4. We have perused the writ petition and all the annexures thereto, including the Order-in-Original. The appellate authority was of the view that show cause notice alleged that the assessee have misdeclared and suppressed the material facts. They seem to suggest that there was no rate fixed of drawback on All Industry rate basis of IC Engines. However, the appellate authority concluded that the goods exported are IC Engines. The application for fixation of brand...

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