Page 248 - ELT_1st June 2020_VOL 372_Part 5th

782 EXCISE LAW TIMES [ Vol. 372

8.8 In an identical issue, in the case of M/s. Aggarwal Foundries, 2001
(133) E.L.T. 505 (Sett. Comm), the adjudication order was issued when the appli-
cation for settlement had already been filed with the Bench, it was held that :
“10. In this context, the Bench observes that admittedly on the date the
application was made, the case was pending adjudication. The fact that the
case has since been adjudicated subsequent to filing of the application, but
before admission cannot be a hurdle to admit the application”.
8.9 Also, in the case of M/s. Marshal Power and Telecom (IND) Limited as
reported in 2007 (220) E.L.T. 535 (Sett. Comm), the relevant portion of the Order
is quoted below :
...“the action of the learned Commissioner to defeat the statutory remedy
available to the applicant in the first instant is unwarranted. The applicant
received the order subsequent to filing of the settlement application. There-
fore, it is to be deemed that the said Order cannot be given cognizance, as it
is to be held as non est”....
8.10 In view of the above, the Bench holds that the Order-in-Original
No. 65822/2018 dated 30-10-2018 in file S. Misc. 18/2017-DBK issued by the
Deputy Commissioner of Customs, Drawback, Custom House, Chennai with
reference to the Show Cause Notice F.No. S. Misc. 18/2017-DBK, dated 31-8-2018
cannot be given any cognizance as it is to be held as non est. However, Commis-
sioner must ensure that the O-in-O is set aside by the higher appellate authority,
otherwise the validity of that O-in-O would combine to have its effect, unless it is
rendered null and void by setting aside.
8.11 The Bench proceeds with the application filed by the applicant on
merits. The applicant firm was having two manufacturing Units, one at Industri-
al Estate, Coimbatore and another at Malumichampatty, Coimbatore and were
engaged in the manufacture and export of Ductile iron casting. Based on infor-
mation that the applicant company were misdeclaring the tariff item classifica-
tion of the said product under Duty Drawback Scheme for availing higher and
ineligible Duty Drawback, for the periods 2011-12, 2012-13 and 2013-14, investi-
gations were taken up by the Officers of Customs Intelligence Unit, Coimbatore.
8.12 Investigations revealed that the applicant firm had resorted to mis-
declaration of Drawback Tariff Classification of the impugned goods under
wrong Heading No. 7325 01 and 7325 10 with a drawback rate of 3%/2.4% in-
stead of a specific Heading No. 7325 15 which has a rate of duty drawback of 2%
of the FOB value in order to avail higher and ineligible duty drawback. Investi-
gations culminated in the issuance of the instant SCN demanding ineligible Duty
Drawback of Rs. 4,19,652/- pertaining to 72 Shipping Bills that were processed at
Chennai Sea Port for the period 2011-12 along with interest of Rs. 38,025/-. Fur-
ther, the SCN demanded ineligible Duty Drawback for 28 Shipping Bills pro-
cessed at Chennai Sea Port from 4-2-2013 to 3-9-2013 amounting to Rs. 1,05,875/-
along with interest of Rs. 1,04,819/-. Thus, the total ineligible Duty Drawback
worked out to Rs. 5,25,527/- (Rs. 4,19,652/- + Rs. 1,05,875/-) and interest to the
tune of Rs. 1,42,844/- (Rs. 38,025/- + Rs. 1,04,819/-).
8.13 The applicant in their application admitted the entire ineligible
Duty Drawback availed and paid the same along with applicable interest as de-
manded in the SCN. An amount of Rs. 4,19,653/- demanded in the SCN was
proposed to be appropriated towards ineligible drawback from the amount of
EXCISE LAW TIMES  1st June 2020  248