Page 172 - ELT_1st August 2020_Vol 373_Part 3

354 EXCISE LAW TIMES [ Vol. 373

(339) E.L.T. 148 (Tri.-Ahmd.)]. The appellant has filed a consolidated appeal chal-
lenging the common order of the Tribunal, despite the fact that it was required to
file a separate appeal in respect of each appeal in which the common order has
been passed. However, considering the fact that the appeal has been admitted in
the year 2012 without any such objection having been raised, at this stage the
Court does not deem it fit to enter into such technicalities when the matter has
come up for final hearing.
2. While admitting the appeal, this Court, by an order dated 24-7-2012,
had formulated the following four substantial questions of law :
“(i) Whether National Calamity Contingent Duty (NCCD), levied un-
der Section 134 of the Finance Act, 2003, is a duty of Customs?
(ii) Whether in the fact and circumstances of the case, was the Tribu-
nal’s right in law, in holding that any appeal on the issue of inclusion of
NCCD for computation of Brand rate of Drawback is not maintainable in
terms of first proviso to Section 129A(1)(b) of the Customs Act, 1962?
(iii) Whether inclusion of NCCD for computation of Brand rate of
Drawback has anything to do with “payment of drawback” appearing at
exception clause (C) of the first proviso to Section 129A(1)(b) of the Cus-
toms Act, 1962?
(iv) Whether any appeal arising out of the order of Commissioner (Ap-
peals) relating to “inclusion of NCCD for computation of Brand rate of
Drawback” would lie before the Tribunal in terms of Section 129A of the
Customs Act, 1962, particularly when NCCD is not considered as a duty
of Customs?”
2.1 However, on a perusal of the record of the case and having heard
the Learned Counsel for the respective parties, the Court is of the view that fol-
lowing additional question of law is required to be formulated :
“i(a) Whether, the National Calamity Contingent Duty (NCCD) of cus-
toms leviable under Section 134 of the Finance Act, 2003 can be consid-
ered for computing brand rate eligibility under the Customs, Central Ex-
cise Duties and Service Tax Drawback Rules, 1995?”
3. The facts briefly stated are that the respondent - M/s. Nayara Energy
Ltd. (previously known as M/s Essar Oil Ltd.) filed various applications for fixa-
tion of brand rate of duty Drawback under Rule 6 of the Customs, Central Excise
Duties and Service Tax Drawback Rules, 1995 (hereinafter referred to as ‘the
Drawback Rules’) for the goods exported by them under various shipping bills,
which were processed by the Additional Commissioner, Central Excise, Rajkot,
who passed separate orders holding that no duty incidence of National Calamity
Contingent Duty (NCCD) can be considered for computing the brand rate eligi-
bility as NCCD leviable upon importation of crude under Section 134 of the Fi-
nance Act, 2003 is not specified for fixation of brand rate.
3.1 Being aggrieved, the respondent preferred appeals before the
Commissioner (Appeals), who, by an order dated 27-7-2010, allowed the appeals.
Being aggrieved, the appellant went in appeal before the Tribunal, which dis-
missed the appeals on the ground that the issue involved in the case is regarding
inclusion of NCCD for computation of brand rate of duty drawback on the goods
exported; any appeal against these orders of Commissioner (Appeals) on this
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