Page 231 - ELT_15th August 2020_Vol 373_Part 4

2020 ] IN RE : NARENDRA TEA COMPANY PVT. LTD. 565

Jurisdictional adjudicating authority vide the above mentioned Order-in-
Original confirmed the demand of Rs. 10,23,000/- along with applicable rate of
interest. Aggrieved, the respondent filed an appeal before the Commissioner
(Appeals) who allowed the appeal on the ground that the applicant had paid
Excise duty on “Bulk Tea” procured by them in terms of D.G.F.T. Notification
No. 39(RE-1)/1997-2002, dated 22-11-2001 and hence they are eligible for draw-
back.
3. The instant revision application has been filed mainly on the ground
that a 100% EOU unit is not eligible for drawback in terms of Central Board of
Excise and Customs Notification No. 31/1999 (N.T.), dated 20-5-1999. The said
notification prescribes that the rates of drawback specified in the drawback schedule
shall not be applicable to export of any of the commodities/products if such commodi-
ty/product is manufactured and/or exported by a unit licensed as hundred per cent ex-
port-oriented undertaking in terms of the relevant provisions of the Import and Export
policy in force. Further, the goods have been supplied by the DTA unit to a hun-
dred per cent export oriented and the incidence of duty has been suffered by the
DTA unit.
4. Personal hearing was granted on 25-9-2019, 7-11-2019 and 6-12-2019.
The applicant sought adjournment on all the above dates. Respondent appeared
on 11-12-2019. The respondent has contended vide their letter dated 18-12-2019
that excise duty has been paid @ 2% on purchase of bulk tea by them.
5. Government has examined the matter. It is observed that the main
issue to be; decided in this case here is as to whether the drawback is admissible
to a 100%/Export Oriented Unit. D.G.F.T. vide Notification No. 39 (RE-1)/1997-
2002, dated 22-11-2001 prescribes that “This rate shall be applicable only in cases
where Excise duty has been paid on procurement of bulk tea by 100% export oriented
units and units in export processing zones, considered as deemed exports in terms of
Chapter 10 of the Export and Import Policy, 1997-2002”. As per the provision of Im-
port-export policy the goods supplied by a DTA unit to 100% export oriented
unit are termed as ‘deemed export’.
The applicant has contended that duty has been paid on the bulk tea
procured by them for export purpose. In the instant case Excise duty has been
paid by bulk tea manufacturer and supplied to 100% EOU treating the same as
‘deemed export’. Therefore, Government is of view that the respondent by no
stretch of imagination being a 100% EOU can claim drawback on export goods
since drawback is not admissible to a 100% EOU unit in terms of General Notes
2(c) of C.B.E. & C. Notification No. 31/1999-Cus. (N.T.), dated 20-5-1999. Thus
the drawback in the instant case should have been claimed by the bulk tea manu-
facturer who has paid the Excise duty and supplied the impugned goods to the
respondent who is a 100% EOU unit in terms of D.G.F.T. Notification No. 39(RE-
1)/1997-2002, dated 22-11-2001.
Hence the Commissioner (Appeals)’ findings that 100% EOU unit is eli-
gible for drawback in terms of D.G.F.T. Notification No. 39 (RE-1)/1997-2002,
dated 22-11-2001 is erroneous and is set aside.
6. Accordingly, the revision application filed by the applicant is
allowed.
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- EXCISE LAW TIMES  15th August 2020  231