Page 176 - ELT_1st August 2020_Vol 373_Part 3

358 EXCISE LAW TIMES [ Vol. 373

or carrying out any operation on the goods. The attention of the Court was invit-
ed to Rule 2(a) of the Drawback Rules, which defines “drawback” in relation to
goods manufactured in India and exported, to mean the rebate of duty or tax, as
the case may be, chargeable on any imported materials or excisable materials
used or taxable services used as input services in manufacture of such goods. It
was submitted that the expression employed in the said rule is “rebate of duty or
tax”. Referring to Section 134 of the Finance Act, 2003, it was pointed out that the
same provides for levy, by surcharge, a duty of Customs, called the National Ca-
lamity Contingent Duty of Customs. Inviting attention to Circular No. 4/2019,
dated 11th October, 2019, it was pointed out that the provisions of the Finance
Acts under which levies of Secondary and Higher Education cess (SHE) and So-
cial Welfare Surcharge (SWS) have been levied are similar to NCCD and there is
no difference, and hence, the decision of the Supreme Court in M/s. Unicorn In-
dustries v. Union of India (supra) would have no bearing on the facts of the pre-
sent case. It was accordingly urged that the impugned order passed by the
Commissioner (Appeals) being just legal and proper, does not warrant interfer-
ence.
6. The facts, as emerging from the record are that by separate commu-
nications dated 16th March, 2010 and, 29th March, 2010 in respect of various ap-
plications made by the respondent, the Additional Commissioner, Central Ex-
cise, Rajkot, informed the respondent that no duty incidence on account of
NCCD can be considered for computing brand rate eligibility, as NCCD is not
specified for fixation of brand rate. By a communication dated 31-12-2009, in
connection with Application No. 135/DBK/2009 made by the respondent for
fixation of brand rate of drawback under Rule 6(1)(a) of the Drawback Rules, the
Additional Commissioner of Central Excise, Rajkot informed the respondent that
no duty incidence on account of NCCD can be considered for computing brand
rate eligibility as NCCD is not specified for fixation of brand rate. Being ag-
grieved by the above communications of Additional Commissioner, Central Ex-
cise, Rajkot, turning down its applications for fixation of brand rate of drawback
under Rule 6 of the Drawback Rules, the respondent preferred thirteen appeals
before the Commissioner (Appeals).
6.1 Before the Commissioner (Appeals), it was the case of the Depart-
ment that as per Board’s Circular No. 11/2005-Cus., dated 3-3-2005, Education
Cess is admissible for brand rate but no specific order in relation to NCCD has
been issued by the Board. Reliance was placed upon Board’s Circular No.
22/2006-Cus., dated 21-8-2006, wherein it has been clarified that National Calam-
ity Contingent Duty of Customs is leviable under Section 134 of the Finance Act,
2003 in respect of imports effected under advance licence and DFIA Schemes
whereby, the whole of the Customs duty is exempted. Since, there are no provi-
sions enabling exemption of NCCD in the notification or Foreign Trade Policy,
NCCD cannot be considered for fixation of brand rate. The Commissioner (Ap-
peals), however, held that by virtue of Section 12 of the Customs Act, the NCCD
leviable under Section 134 of the Finance Act, 2003, becomes a duty of Customs
and since it is a duty of Customs, as per Section 75 of the Customs Act, the draw-
back thereof is admissible.
6.2 The Commissioner (Appeals) placed reliance upon various circulars
of the CBEC, more particularly, Circular No. 106/95-Cus., dated 11-10-1995,
wherein it has been held that Anti-dumping duty which is leviable under Section
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