Page 185 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMISSIONER OF CUSTOMS v. NAYARA ENERGY LTD. 367

being a Customs duty under Section 12 of the Customs Act, in the light of the
provisions of Section 75 of the Customs Act, drawback is allowable on such duty,
it being a duty of Customs chargeable under the Act. In terms of Circular No.
4/2019-Cus., (Instruction) dated 11th October, 2019, it has been clarified that the
provisions providing for levy of Secondary and Higher Secondary Cess and So-
cial Welfare Surcharge provide that the provisions of Customs Act, 1962 and
Central Excise Act, 1944 and rules and regulations made thereunder including
those relating to refunds, exemptions, etc. shall apply to these levies and there-
fore, the elements of these cesses are required to be factored in Brand Rate of
drawback duty. Similarly, in case of Stowage Excise duty since there are no such
similar provisions making the provisions of the Customs Act, 1962 and the Cen-
tral Excise Act, 1944 and rules and regulations made thereunder including those
relating to refunds, exemptions, etc. applicable to the said levy, it has been clari-
fied that the said levy cannot be considered for inclusion in the calculation of
duty drawback on any export goods. While Circular No. 4/2019-Cus has been
issued on 11th October, 2019, it being a clarificatory circular can be made appli-
cable retrospectively. Viewed in the light of the above circular, sub-section (4) of
Section 134 of the Finance Act, provides that, the provisions of the Customs Act
and the rules and regulations made thereunder, including those relating to re-
funds and exemptions from duties and imposition of penalty, shall, as far as may
be, apply in relation to the levy and collection of the National Calamity Duty of
Customs leviable under that section in respect of the goods specified in the Sev-
enth Schedule to the Finance Act, 2001 (14 of 2001) as amended by the Thirteenth
Schedule, as they apply in relation to the levy and collection of the duties of cus-
toms on such goods under that Act, or those rules and regulations, as the case
may be. Thus, in terms of the clarification issued by the above circular, the ele-
ments of NCCD are required to be factored in brand rate of drawback duty.
26. However, since the NCCD has not been taken into consideration
while fixing all-industry rate of drawback, like in the case of anti-dumping duty
as provided in Circular No. 106/95-Cus., dated 11th October, 1995, the drawback
of such NCCD can only be claimed under an application for brand rate under
Rule 6 or Rule 7 of the Drawback Rules. In this case the respondent has made an
application for fixing the brand rate of duty drawback under Rule 6 of the Draw-
back Rules. Therefore, in the light of the stand taken by the CBEC in the clarifica-
tory circulars referred to hereinabove, the application made by the respondent
under Rule 6 of the Drawback Rules, ought to have been taken into considera-
tion. The Additional Commissioner of Central Excise was, therefore, not justified
in holding that no duty incidence on account of NCCD can be considered for
computing brand rate liability as NCCD is not specified for fixation of brand
rate. For the reasons recorded hereinabove, this Court is in agreement with the
view adopted by the Commissioner (Appeals) in holding that since NCCD is a
duty of customs, drawback thereof is admissible.
27. Since this Court has decided the controversy in issue on the basis of
the above referred circulars issued by the CBEC from time to time and the rele-
vant statutory provisions and no reliance has been placed upon decision of the
Supreme Court in Bajaj Auto Ltd. v. Union of India (supra), the fact that the said
decision has subsequently been overruled by the decision of the Supreme Court
in M/s. Unicorn Industries v. Union of India (supra), will have no bearing insofar as
the facts of the present case are concerned.
EXCISE LAW TIMES  1st August 2020  185