Judgment :- 1. These four tax referred cases are before us for answering the following four common questions arising out of the order dated 10/1/2003 passed in appeal No. C/105/02, No. C/160/02, No. C/161,162/02 and No. C/166/02 by the Customs, Excise and Service Tax Appellate Tribunal (for short, ‘the Tribunal’), South Zonal Bench at Bangalore as indicated in reference orders dated 23/11/2004. These references are consequent to order passed by a Division Bench of this court in Civil Petition No. 1141/2003 dated 8/10/2003, wherein this court had directed the Tribunal to refer for our opinion and answering the precise four questions and we have examined the references and heard learned counsel for parties at considerable length for reaching this day to pass orders on such references:- Common four questions in TRC 1, 2, & 4/2005 “1. Whether the CEGAT has committed an error in holding that the Order-in-Original is bad as it allowed duty Drawback as per Board Circular No. 67/1998, read with Board Circular No. 74/1999 CUS? 2. Whether the CEGAT was right in allowing the Appeal and awarding the Drawback as per All Industry Rates against the provision of notifications 67/1998, Board Circular No. 67/1998 and 74/1999? 3. Whether the respondent was eligible for Drawback as per All Industry Rate or Brand Rate? 4. Whether the order of the CEGAT runs contrary to the rules, circulars, notifications and procedures as prescribed under the Customs Act for allowance of duty Drawback by the respondent?” Additional question in TRC No.3/2005: “Whether the CEGAT was right in holding that the non-mentioning of the goods being manufactured by EOU/EPZ, does not amount to mis-declaration in violation of provisions of sub section 2 of section 50 of the Customs Act?” 2. The four questions for our answer have arisen out of similar facts but have become four references for the reason that claim for duty drawback in terms of Section 75 of the Customs Act, 1962 (for short, the Act) put forth by the respondent-assessee allowed in the first instance but denied on re-opening of four assessment orders and goods in respect of which disputes are arising have been exported at difference points of time from two airports one at Bangalore and another at Chennai. The assessee after the reopening, failed before the adjudicating authority, but met with success before I-appellate authority namely the Tribunal. The assessee after the reopening, failed before the adjudicating authority, but met with success before I-appellate authority namely the Tribunal. Therefore, the revenue for resisting the benefit of duty drawback, which the respondent-assessee, otherwise becomes entitled to in terms of order of the Tribunal, the present reference cases at the instance of the revenue. 3. Though references are four in number, referred questions are common and facts are similar. It is for these reasons we have found it convenient to answer the questions under reference by this common order. 4. We had found narration of facts in the statement of case submitted by the Tribunal to be incomplete or inadequate for appreciating the submissions made on behalf of the revenue by its learned Senior Central Government standing counsel, initially by Sri N.R. Bhaskar and later Sri Raveendran, learned Additional Solicitor General having joined for making further submissions on behalf of the revenue and on behalf of the respondent-assessee Sri Ajay J.N., learned counsel representing Sri K.G. Raghavan, learned Senior counsel and later Sri Ajay J.N., had been joined by Sri Naresh Thacker, learned counsel. We had directed the learned senior Central Government Standing Counsel to submit statement of case with necessary facts for proper adjudication of references. 5. We have heard the arguments spread over for a period of one year by now as the matter was first taken up by this bench on 5/1/2010 and developments during this period and the need for numerous hearings quite vividly depicted in the orders passed thereafter, which are as under:- “DVSKJ/NAJ : 5/1/2010 The Commissioner of Customs at Bangalore, is directed to be present along with his Joint Commissioner in-charge of litigation and original records relating to reference nos. TRC 1/2005, TRC 2/2005, TRC 3/2005 and TRC 4/2005, as we find we are not receiving any worthwhile assistance from the counsel appearing for the parties in these references and we are not able to answer the references. List these matters on 7/1/2010 as requested by Sri K.N. Mohan, learned standing counsel appearing for the department. TRC 1/2005, TRC 2/2005, TRC 3/2005 and TRC 4/2005, as we find we are not receiving any worthwhile assistance from the counsel appearing for the parties in these references and we are not able to answer the references. List these matters on 7/1/2010 as requested by Sri K.N. Mohan, learned standing counsel appearing for the department. Furnish a copy of this order to Sri K.N. Mohan, learned standing counsel appearing fro the department for ensuring compliance”/ “DVSKJ/NAJ : 7/1/2010 Sri K.N. Mohan, learned junior standing counsel appearing for the Central Excise and Customs Department, has filed a memo indicating the circumstances under which the Commissioner of Customs, Bangalore, is unable to be present before the court today and that Mr. N K Gupta, Joint Commissioner of Customs who is in charge of the legal cell of the department is present before the court. Even after hearing the learned standing counsel on behalf of the revenue and also Mr. N K Gupta, Joint Commissioner of Customs, we are not in a position to appreciate as to under what circumstances and against what duties that had been suffered by the respondent-assessee and against what excise duty or customs duty which had been actually paid by the respondent-assessee, the Department had allowed the drawback initially and which was later withdrawn by invoking the provisions of rule – 16 of the Customs and Central Excise Duties Drawback Rules, 1995, and neither Mr. Ajay, learned counsel for the respondent-assessee is in a to satisfy us that the assessee in question had actually paid any excise duty or customs duty and on the other hand, would submit that when the assessee has some raw material in the market which was and exciseable raw material, it is presumed that the assessee itself has paid the excise duty and therefore on such premise is entitled to claim the duty drawback when finished product manufactured using such raw material is exported. We would appreciate if the Commissioner of Customs himself is present before the court as we would like to know as to in what manner the duty drawback provisions are being worked, particularly, as we are unable to appreciate how a duty drawback can be allowed even when there is no proof of payment of either excise duty or customs duty by the exported claiming drawback List on 18/1/2010 as requested by Sri K N Mohan, learned Junior Standing Counsel appearing for the revenue as also Mr. N K Gupta, Joint Commissioner of Customs who has appeared on behalf of the revenue, for which Sri Ajay, learned counsel for the respondent-assessee has no objection. Furnish a copy of this order to Sri K N Mohan, learned junior standing counsel appearing for the revenue”. “DVSKJ/NAJ : 18/1/2010 Mr. B Bhattacharji, Commissioner of Customs, Bangalore, is present before this court. He states that the duty drawback is allowed both on payment of excise duty and customs duty, when the finished product is exported out of the country and when a person effecting export claims duty drawback etc. We are still not convinced, that a duty drawback can be claimed by an exporter, in the absence of the actual payment of customs duty or excise duty incurred on any imported raw material or any locally manufactured goods having been used as an input, for producing a product, which is exported. Mr. K N Mohan, learned junior standing counsel appearing for the appellant-revenue seeks two weeks time to place before the court a written submission explaining the circumstances under which and in terms of the various notifications/circulars, enabled by the Central Government, duty drawback is allowed on the export on certain products, both on excise duty and customs duty that has been realized by the Government. List this matter on 4/2/2010 as requested by the Commissioner. Commissioner to be present on the next date of hearing. Furnish a copy of this order to Mr. K N Mohan, learned junior standing counsel appearing for the appellant”. “DVSKJ & NAJ : 4/2/2010 Sri K N Mohan, learned junior standing counsel appearing for the appellant-Commissioner of Customs, has placed before us written submissions, on behalf of the appellant along with Board Circulars No. 24/2001-Cus, No.19/2005-Cus and No.31/2000-Cus and extract of Section 74 to Section 76 of the Customs Act, 1962 (52 of 1962). 2. “DVSKJ & NAJ : 4/2/2010 Sri K N Mohan, learned junior standing counsel appearing for the appellant-Commissioner of Customs, has placed before us written submissions, on behalf of the appellant along with Board Circulars No. 24/2001-Cus, No.19/2005-Cus and No.31/2000-Cus and extract of Section 74 to Section 76 of the Customs Act, 1962 (52 of 1962). 2. Weare still not very convinced as to the manner of working of the provisions of Section 75 and Section 76 of the Act, to allow duty drawback in respect of exported goods and in whose hands, to what extent and in what circumstances, particularly, having regard to the limitation imposed in terms of Rule 3 of the Customs and Excise Duties Drawback Rules, 1995, in terms of proviso to this rule, sub-rule (1) and (3) read in conjunction with Rule 6, Rule 8, Rule 11, Rule 13 and Rule 15 of the said Rules. 3. Even the submissions made by the Commissioner have not cleared our doubts as to whether an exporter who has not himself either imported the raw material and exported goods and an importer who has not paid customs duty at the time of import, can also claim the duty drawback benefit and as to whether a duty drawback can be allowed even in a situation where the imported raw material has not suffered any customs duty at all, at the time of import. 4. The further question is as to whether an exporter can claim duty drawback at its maximum permitted level even when in the hands of a class of importers, the customs duty paid is found to be at a lesser rate and not the full rate of duty as is normally paid by all other classes of importers. 5. Such questions are not answered either by the counsel for the petitioner-Department or by the commissioner himself who has appeared in person today before us and who has sought to explain the scope of Rules and Board Circulars. 6. The Commissioner has also stated that the written submission now placed before the court has the approval of the Finance Ministry. 7. 6. The Commissioner has also stated that the written submission now placed before the court has the approval of the Finance Ministry. 7. We are sorry to not that with all that, our endeavor and the purpose to understand the scheme of duty drawback, has not materialized and it may be in fitness of things that the architects of all these rules or one of them may come before this court and explain to us about the duty drawback scheme, its manner of functioning all these days and the present thinking of the Government on this issue, if that is not a taboo for the concerned officer in the Finance Ministry and at any rate, we expect the Commissioner to provide us the statutory provisions in the Act, the relevant Rules and all Board Circulars governing them, compiled in one paper book. Learned Central Government standing counsel, to ensure that the sets of the same are placed before the court and simultaneously, to furnish a copy of the same to the learned counsel appearing for the respondent. 8. List this matter on 4/3/2010 as requested by Sri K N Mohan, learned junior standing counsel and also, the commissioner, who is present before the court. 9. Furnisha copy of this order to Sri K N Mohan, learned junior standing counsel for the petitioner”. “DVSKJ/NAJ : 4/3/2010 In terms of our dated 4/2/2010, reading as under: ORDER Sri K N Mohan, learned junior standing counsel appearing for the appellant-commissioner of Customs, has placed before us written submissions, on behalf of the appellant along with board circulars no. 24/2001-Cus, No.19/2005-Cus and No.31/2000-Cus and extract of Section 74 to Section 76 of the Customs Act, 1962 (52 of 1962). 2. Weare still not very convinced as to the manner of working of the provisions of Section 75 and Section 76 of the Act, to allow duty drawback in respect of exported goods and in whose hands, to what extent and in what circumstances, particularly, having regard to the limitation imposed in terms of Rule 3 of the Customs and Excise Duties Drawback Rules, 1995, in terms of proviso to this rule, sub-rule (1) and (3) read in conjunction with Rule 6, Rule 8, Rule 11, Rule 13 and Rule 15 of the said Rules. 3. 3. Even the submissions made by the Commissioner have not cleared our doubts as to whether an exporter who has not himself either imported the raw material and exported goods and an importer who has not paid customs duty at the time of import, can also claim the duty drawback benefit and as to whether a duty drawback can be allowed even in a situation where the imported raw material has not suffered any customs duty at all, at the time of import. 4. The further question is as to whether an exporter can claim duty drawback at its maximum permitted level even when in the hands of a class of importers, the customs duty paid is found to be at a lesser rate and not the full rate of duty as is normally paid by all other classes of importers. 5. Such questions are not answered either by the counsel for the petitioner-Department or by the commissioner himself who has appeared in person today before us and who has sought to explain the scope of Rules and Board Circulars. 6. The Commissioner has also stated that the written submission now placed before the court has the approval of the Finance Ministry. 7. We are sorry to not that with all that, our endeavor and the purpose to understand the scheme of duty drawback, has not materialized and it may be in fitness of things that the architects of all these rules or one of them may come before this court and explain to us about the duty drawback scheme, its manner of functioning all these days and the present thinking of the Government on this issue, if that is not a taboo for the concerned officer in the Finance Ministry and at any rate, we expect the Commissioner to provide us the statutory provisions in the Act, the relevant Rules and all Board Circulars governing them, compiled in one paper book. Learned Central Government standing counsel, to ensure that the sets of the same are placed before the court and simultaneously, to furnish a copy of the same to the learned counsel appearing for the respondent. 8. List this matter on 4/3/2010 as requested by Sri K N Mohan, learned junior standing counsel and also, the commissioner, who is present before the court. 9. 8. List this matter on 4/3/2010 as requested by Sri K N Mohan, learned junior standing counsel and also, the commissioner, who is present before the court. 9. Furnisha copy of this order to Sri K N Mohan, learned junior standing counsel for the petitioner We had directed the matter be listed today the ensure that an informed responsible officer from the Ministry of Finance is present before the court to assist the court, particularly to apprise us about the background of scheme of duty drawback, its working in practice, the object of providing duty drawbacks and the scheme visualized in the Ministry of Finance for extending benefits under the scheme, etc. 2. Mr. Pramod Kumar, Under Secretary in the Ministry of Finance, who is presently working as Technical Officer in Central Board of Excise and Customs, Duty Drawback Division, is present before the court. 3. Mr. Kumar has, to some extent, educated us about the duty drawback scheme, the background in which the duty drawback scheme had been introduced and as to the manner of its working, particularly in the present global context and with the agreements and the understanding that have evolved in the wake of World Trade Organisation overseeing the international trade and practices and acting like a big brother over all member states. 4. It is very obvious that our country, though a sovereign republic, has yielded to the overseeing influence and is playing tune to the delicates of such organizations whether or not such organizations are concerned for our people or for our society nor are they familiar with the social conditions that prevail in our country. 5. Be that as it may. Though it appears to be the reality of the day and it is in this background Mr. Pramod Kumar had explained to us the working of the duty drawback scheme in our country in terms of Section 75 and 76 of the Customs Act. We are still, not fully satisfied that we have understood all niceties and nuances of the working of duty drawback scheme and therefore, we direct the Ministry of Finance to place before the court, their understanding of the manner of working of the duty drawback scheme, so that it is available before the court in writing and also as to in what manner it impacts the facts of the present case. 6. Though, Mr. 6. Though, Mr. Pramod Kumar would bring to our notice the written submissions already placed before us to submit this covers all such aspects, we, nevertheless, request Mr. Pramod Kumar to have a second look into the written submissions in the context of the facts of the present case and in the context of the duty drawback scheme as is understood in the Ministry of Finance and as is sought to be placed before the Court, and to provide further inputs if found needed or warranted to be placed before the court and if it is already not available before the court. 7. Either way, it is open to the ministry to supplement the present written submissions or rest content with whatever placed before the court and to say that is end of the matter. 8. We direct the matter to be listened after four weeks i.e., on 08.04.2010. 9. As Mr.pramod kumar indicates that needful can be done within three weeks and thereafter,the learned central government standing counsel can place it before the court in a proper manner, after furnishing a copy of the same to the learned counsel for the respondent will be in a position to respond to the same, within the available weeks time thereafter. 10. The further supplemental written submissions or other inputs be placed before the court by filing the same in the registry, after furnishing a copy of the same for the respondent on or before 01.04.2010. 11. Furnish a copy of this order to the learned central government standing counsel.” DVSKJ/NAJ : 22/06/2010. Mr. Naresh thakkar, who has appeared for the respondent-assessee made submission regarding statutory scheme, particularly the provisions of section 75 of the customs act, 1962; that while expressions of all industry rate of drawback and brand rate of drawback with reference to statutory provisions of practicing trade has been all along to recognize distinctions between these two rates and exporter being entitled to claim duty drawback depending upon the applicability of one of the two rates; that the controversy between the parties in these references are while the revenue contends that brand rate of duty drawback, the version of the assessee on the other hand is, it should be of all industry rate of drawback. However, on this aspect of the matter, learned counsel for the revenue joins issue to contend that definitely it is not that revenue concedes; that the assessee was entitled to claim brand rate of duty drawback. While the matter is heard in part, Sri Naresh Thakkar, learned counsel requests for some accommodation to look up to other statutory provisions, notifications and circulars with reference to the statutory provisions which have been made up-to-date relating to allowing of duty drawback and requests the matter to be listed on 28/6/2010. Our experience in these tax reference cases is that the matters are not getting concluded even after several hearings. The duty drawback scheme, under the provisions of Customs Act, 1962, is the subject matter of examination in these cases and it has been our endeavour to understand and appreciate the manner of working of this scheme for the purpose of allowing a drawback on duty in favour of exporters. To educate us on this aspect Mr. Naresh Thakkar, learned counsel for the assessee, has drawn our attention to section 37 of the Central Excise Act, 1944 to contend that the duty drawback is permissible under the Central Excise Rules; that the customs and central excise duties drawback rules, 1995 enables the exporter to claim duty drawback, even in respect of excise duty paid or payable on the export product or component on the export product and that while section 75 of the Customs Act, 1962 provides for allowing duty drawback, on customs duty paid, the corresponding provision is to be found in section 37 of the Central Excises and Salt Act, in respect of excise duties paid and enabling provisions for the purposes of these two enactments are to be found in the 1995 rules and that the Central Government has to allow duty drawback even on the excise duty paid. We find there is considerable difference between the statutory provisions under section 75 of the Customs Act and section 37 of the Central Excises and Salt Act. Section 75 of the Customs Act is the specific enabling provision, permitting duty drawback of import duty paid on inputs of goods, which are exported, we find a like provision is absent in section 37 of the Central Excises and Salt Act. Section 75 of the Customs Act is the specific enabling provision, permitting duty drawback of import duty paid on inputs of goods, which are exported, we find a like provision is absent in section 37 of the Central Excises and Salt Act. Which is a provision enabling Central Government, enacted to frame rule for the purpose of implementing and working of the central excise act and is not for the purpose as contemplated under section 75 of the Customs Act. Sri Naresh Thakkar, seeks time to clarify on this aspect of the matter. We grant six weeks time to enable the learned counsel to equip himself on this aspect, and to make further submissions. List these matters on 3/8/2010 for further hearing. DVSKJ & NAJ : 3/8/2010 Though we have made an attempt to understand the facts of present case, for which purpose, the Tribunal had submitted a statement of case, as prepared and forwarded by the tribunal, we find the statement of case sent to this court by the tribunal lacks necessary and basic facts for answering the questions under reference. We are expressing our dismay at the haphazard and careless manner in which the tribunal has forwarded the statement of case without indicating the facts of the particular case relating to each reference. 2. we find, there are four references, thought the export period was between 1/4/1998 to 31/3/1999, as claimed by the respondent the inputs having been procured by the respondent from difference sources and having effected the exports during different period in respect of separate claims for allowing duty drawback, therefore it is very essential that the facts in respect of each reference will have to be placed before this court, one case cannot be decided on facts prevailing in some other case. 3. In spite of this matter being heard on several earlier occasions and being taken up specially today, and as per the request of Mr. Naresh Thakkar, learned counsel appearing for the respondent assessee, we have not been able to conclude this matter not only for want of assistance to enlighten legal position, but also for want of basic facts which are not forthcoming and submission of Mr. Naresh Thakkar, learned counsel appearing for the respondent assessee, we have not been able to conclude this matter not only for want of assistance to enlighten legal position, but also for want of basic facts which are not forthcoming and submission of Mr. Naresh Thakkar, learned counsel for the respondent, who has been virtually requested to assist the court not only as a counsel for the respondent assessee, but also to assist us a Amicus Curiae to educate us on the legal position which, Mr K N Mohan, junior standing counsel for Central Excise, Customs and Service Tax, part of the Government of India, having miserably failed in this regard and on the other hand, though Mr. Naresh Thakkar has been making a valiant effort to educate us on the legal intricacies involved in the grant of refusal of a duty drawback, we are, nevertheless, handicapped for want of relevant facts and documents leading to the above references. 4. Mr. Naresh Thakkar, would submit that the claim for duty drawback which has now been allowed by the tribunal purporting to follow its decision in the earlier appeal no. F/2/03 dated 1/2/2003 and that no facts are forthcoming in the order of the tribunal, not even the basic facts though the statement of case and facts of the case are indicated to be as part of the order. 5. We are unable to make any headway in the hearing of the case for want of the facts and documents leading to these references. The statement of case does not reveal the basic facts of the case. This court at the instance of the revenue and in terms of the order passed on 8/10/2003 had opined that the following questions sought for reference by the revenue, are questions which are required to be examined and answered. “1. Whether the CEGAT has committed an error in holding that the Order-in-Original is bad as it allowed duty drawback as per the Board Circular No. 67/1998, read with Board Circular No. 74/1999 Cus? 2. Whether the CEGAT was right in allowing the appeal and awarding the drawback as per All Industry Rates against the provision of Notification No.67/1998, Board Circular No. 67/1998 and 76/1999? 3. Whether the respondent was eligible for drawback as per all Industry Rate or Branch Rate? 4. 2. Whether the CEGAT was right in allowing the appeal and awarding the drawback as per All Industry Rates against the provision of Notification No.67/1998, Board Circular No. 67/1998 and 76/1999? 3. Whether the respondent was eligible for drawback as per all Industry Rate or Branch Rate? 4. Whether the order of the CEGAT runs contrary to the Rules, Circulars, Notification and Procedures as prescribed under the Customs Act for allowance of duty drawback by the respondent?” 6. Mr. Mohan, learned junior standing counsel for Central Excise, Customs and Service Tax, appearing on behalf of revenue in these references submits that paper book could not be filed as these cases had been entrusted to him by way of transfer of the brief from another counsel. 7. That cannot be an excuse for depriving the court the relevant case papers and documents and getting papers. It is the responsibility of the Commissioner of customs, who has sought through these references answers to the questions posed by him to provide necessary papers which has not been provided to this court, even as admitted by learned standing counsel. While, we deprecate the dismal state of affairs prevailing at the office of the commissioner of customs, Queens Road, Bangalore – 560 001, Karnataka, in not assisting us to answer the four references and to take a decision. We cannot help but point out to the commissioner of customs that it is his duty to provide necessary assistance and material, which is neither forthcoming in this reference not in the other three references, we can only express our anguish at the sorry state of affairs. 8. We are therefore constrained to direct the Commissioner of customs to be present before this court on the next date of hearing and also to ensure that the original documents be made available and as requested by Mr. Mohan, learned junior standing counsel for the revenue, we grant time till 27th August 2010, for filing commensurate paper book culled out from the original records and also the papers filed and available before the adjudicating authority, as also the appellate authority, which should clearly indicate the facts of the case, without leaving any room for speculation. Commissioner of customs also to ensure that all original records leading to the reference cases are placed before the court. Commissioner of customs also to ensure that all original records leading to the reference cases are placed before the court. As requested by Sri Naresh Thakkar, learned counsel appearing for the respondent assessee, this matter is adjourned to 27/8/2010 for further hearing at 2.30 p.m. on that day. 9. Registry is directed to furnish a copy of this order free of cost to Sri M. Mohan, learned junior standing counsel for Central excise, Customs and Service Tax and also to send copies of this order directly to: The Commissioner of Customs, Queens Road, Bangalore – 560 001 The Chariperson, Central Board of Customs & Excise, New Delhi; and The Secretary, Ministry of Finance, New Delhi DVSKJ/NAJ : 27/8/2010 Inspite of the court passing a very elaborate order on 3/8/2010, calling upon the petitioner – the Commissioner of Customs – to place before this court very basic facts leading to the references – four in number, what has been done by the petitioner – Commissioner of Customs – is an apology for complying with the order and Mr. Bhaskar, learned standing counsel appearing for the petitioner, who had embarked upon to submit that some paper book is filed pursuant to the directions issued by this court, later on apologizes to the court, submitting that neither the commissioner not the counsel have properly understood the order for necessary compliance. This again, reflects the sorry state of affairs that prevails not only in the department of revenue of the finance ministry, Government of India, but also lack of understanding on the part of their standing counsel, which is all to the detriment of the larger public interest and the people of this country. It is high time people in administrative position and wielding power, realize their responsibilities and duties and acts with some degree of commitment and sincerity to their work. We keep expressing our dismay, disappointment and disillusionment, but to no avail, as there is no commensurate response from the commission nor the counsel. Our order passed on 3/8/210 reads as under: Though we have made an attempt to understand the facts of present case, for which purpose, the tribunal had submitted a statement of case, as prepared and forwarded by the Tribunal, we find the statement of case sent to this court by the tribunal lacks necessary and basic facts for answering the questions under reference. We are expressing our dismay at the haphazard and careless manner in which the tribunal has forwarded the statement of case without indicating the facts of the particular case relating to each reference. 2. we find, there are four references, thought the export period was between 1/4/1998 to 31/3/1999, as claimed by the respondent the inputs having been procured by the respondent from difference sources and having effected the exports during different period in respect of separate claims for allowing duty drawback, therefore it is very essential that the facts in respect of each reference will have to be placed before this court, one case cannot be decided on facts prevailing in some other case. 3. In spite of this matter being heard on several earlier occasions and being taken up specially today, and as per the request of Mr. Naresh Thakkar, learned counsel appearing for the respondent assessee, we have not been able to conclude this matter not only for want of assistance to enlighten legal position, but also for want of basic facts which are not forthcoming and submission of Mr. Naresh Thakkar, learned counsel for the respondent, who has been virtually requested to assist the court not only as a counsel for the respondent assessee, but also to assist us a Amicus Curiae to educate us on the legal position which, Mr K N Mohan, junior standing counsel for Central Excise, Customs and Service Tax, part of the Government of India, having miserably failed in this regard and on the other hand, though Mr. Naresh Thakkar has been making a valiant effort to educate us on the legal intricacies involved in the grant of refusal of a duty drawback, we are, nevertheless, handicapped for want of relevant facts and documents leading to the above references. 4. Mr. Naresh Thakkar, would submit that the claim for duty drawback which has now been allowed by the tribunal purporting to follow its decision in the earlier appeal no. F/2/03 dated 1/2/2003 and that no facts are forthcoming in the order of the tribunal, not even the basic facts though the statement of case and facts of the case are indicated to be as part of the order. 5. We are unable to make any headway in the hearing of the case for want of the facts and documents leading to these references. 5. We are unable to make any headway in the hearing of the case for want of the facts and documents leading to these references. The statement of case does not reveal the basic facts of the case. This court at the instance of the revenue and in terms of the order passed on 8/10/2003 had opined that the following questions sought for reference by the revenue, are questions which are required to be examined and answered. “1. Whether the CEGAT has committed an error in holding that the Order-in-Original is bad as it allowed duty drawback as per the Board Circular No. 67/1998, read with Board Circular No. 74/1999 Cus? 2. Whether the CEGAT was right in allowing the appeal and awarding the drawback as per All Industry Rates against the provision of Notification No.67/1998, Board Circular No. 67/1998 and 76/1999? 3. Whether the respondent was eligible for drawback as per all Industry Rate or Branch Rate? 4. Whether the order of the CEGAT runs contrary to the Rules, Circulars, Notification and Procedures as prescribed under the Customs Act for allowance of duty drawback by the respondent?” 6. Mr. Mohan, learned junior standing counsel for Central Excise, Customs and Service Tax, appearing on behalf of revenue in these references submits that paper book could not be filed as these cases had been entrusted to him by way of transfer of the brief from another counsel. 7. That cannot be an excuse for depriving the court the relevant case papers and documents and getting papers. It is the responsibility of the Commissioner of customs, who has sought through these references answers to the questions posed by him to provide necessary papers which has not been provided to this court, even as admitted by learned standing counsel. 8. While, we deprecate the dismal state of affairs prevailing at the office of the commissioner of customs, Queens Road, Bangalore – 560 001, Karnataka, in not assisting us to answer the four references and to take a decision. We cannot help but point out to the commissioner of customs that it is his duty to provide necessary assistance and material, which is neither forthcoming in this reference not in the other three references, we can only express our anguish at the sorry state of affairs. 9. We cannot help but point out to the commissioner of customs that it is his duty to provide necessary assistance and material, which is neither forthcoming in this reference not in the other three references, we can only express our anguish at the sorry state of affairs. 9. Weare therefore constrained to direct the Commissioner of customs to be present before this court on the next date of hearing and also to ensure that the original documents be made available and as requested by Mr. Mohan, learned junior standing counsel for the revenue, we grant time till 27th August 2010, for filing commensurate paper book culled out from the original records and also the papers filed and available before the adjudicating authority, as also the appellate authority, which should clearly indicate the facts of the case, without leaving any room for speculation. Commissioner of customs also to ensure that all original records leading to the reference cases are placed before the court. As requested by Sri Naresh Thakkar, learned counsel appearing for the respondent assessee, this matter is adjourned to 27/8/2010 for further hearing at 2.30 p.m. on that day. 10. Registry is directed to furnish a copy of this order free of cost to Sri M. Mohan, learned junior standing counsel for Central excise, Customs and Service Tax and also to send copies of this order directly to : The Commissioner of Customs, Queens Road, Bangalore – 560 001 The Chariperson, Central Board of Customs & Excise, New Delhi; and The Secretary, Ministry of Finance, New Delhi Inspite of such an elaborate order, if the learned standing counsel for the central government submits that he has not understood the contents of the order, there is something radically wrong and something rotting in the finance ministry and the customs department. It is really high time the officials in the customs department and finance ministry pulled up their socks and started performing for a good measure. We are directing the registry to issue a copy of this order, free of cost, not only to the learned standing counsel appearing for the petitioner but also to the commissioner, so that there is no further confusion, misunderstanding or apologies pleaded before this court for inefficiency and noncompliance. We are directing the registry to issue a copy of this order, free of cost, not only to the learned standing counsel appearing for the petitioner but also to the commissioner, so that there is no further confusion, misunderstanding or apologies pleaded before this court for inefficiency and noncompliance. Registry is directed to forward copies of this order to the Secretary, Ministry of Finance, Department of Revenue and the Chariman, Central Board of Excise and Customs, for possible remedial and reformative measures. We also express our dismay that the commissioner, who has sought these reference cases for answers to his questions arising in each response, has not been assisting or cooperating with the court for the proper disposal of these matters. It is also causing inconvenience to the respondent and its counsel due to the prolonged hearings of the reference cases, as the learned counsel for the respondent, it appears, is based at Mumbai making trips to Bangalore only for the purpose of appearing in these reference cases at the instance of Commissioner. In the circumstance, we impose a nominal cost of Rs. 5,000/- this time, payable to the respondent – assessee by the petitioner in these cases, but if adjournments are sought or become necessary again on the next date of hearing, petitioner will have to bear the actual cost incurred by the respondent. List these matter on 17/9/2010, as requested by Sri Bhaskar, learned standing counsel for the petitioners and Sri Naresh Thacker, learned counsel appearing for the respondent –assessee.” “DVSKJ & NAJ : 17/9/2010 Mr. Ajay, learned counsel appearing for the respondent-assessee requests accommodation for two weeks as the arguing counsel Mr. Naresh Thacker is unable to come to Bangalore as he has laid down due to indisposition at Mumbai. Sri Ravindra, learned Additional Solicitor General appearing for the petitioner very gracefully does not oppose the request and submits that the matter can be taken up after two weeks. Naresh Thacker is unable to come to Bangalore as he has laid down due to indisposition at Mumbai. Sri Ravindra, learned Additional Solicitor General appearing for the petitioner very gracefully does not oppose the request and submits that the matter can be taken up after two weeks. As requested by the learned counsel for parties, list these matters on 8/10/2010.” DVSKJ/NAJ : 29/10/2010 In the wake of our pointing out as to the correctness or otherwise of even the enabling rules viz., Customs and Central Excise Duties Drawback Rules, 1995 (for short, the Rules) providing for allowing duty drawback for industries in respect of notified goods, particularly having regard to the language of sub-section (2) of section 75 of the Customs Act, 1962, reading as under: 75. Drawback on imported materials used in the manufacture of goods which are exported (1) Xxx (2) The Central Government may make rules for the purpose of carrying out the provisions of subsection (1) and, in particular, such rules may provide (a) For the payment of drawback equal to the amount of duty actually paid on the imported materials used in the manufacture or processing of the goods or carrying out any operation on the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture or processing of export goods or carrying out any operation on export goods of that class or description either by manufacturers generally or by any particular manufacturer or particular person carrying on any process or other operation, and interest, if any, payable thereon: (b) For specifying the goods in respect of which no drawback shall be allowed. (c) For specifying the procedure for recovery or adjustment of the amount of any drawback which had been allowed under sub-section (1) or interest chargeable thereon; (d) For the production of such certificates, documents and other evidence in support of each claim of drawback as may be necessary; (e) For requiring the manufacturer or the person carrying out any process or other operation to give access to every part of his manufactory to any officer of customs specially authorized in this behalf by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to enable such authorized officer to insepct the processes of manufacture, process or any other operation carried out and to verify by actual check or otherwise the statements made in support of the claim for drawback. (f) Forthe manner and the time within which the claim for payment of drawback may be field; Which enables the central government to make rules for effectuating the procvisions of sub-section (1), providing for duty drawback, Sri Raveendran, learned ASG, appearing for the petitioners, request the matter to be taken up for further hearing on 12/11/2010 to enable the petitioners to once again look into the law and to apprise the court as to the legal position of allowing duty drawback even when the factum of goods having suffered duty earlier, is either not established or is not established as a fact before the customs authorities, as it is the version of the revenue in this case that the assessee has not fulfilled this requirement and if we have to properly and effectively answer the questions posed for our answered in these references, both the legal position and the factual position should be clear and definite. As requested by both sides, list the matter on 12/11/2010 for further hearing.” “DVSKJ/NAJ : 12/11/2010 We have heard Sri Raveendra, learned Additional Solicitor General appearing for the Commissioner of Customs. As requested by both sides, list the matter on 12/11/2010 for further hearing.” “DVSKJ/NAJ : 12/11/2010 We have heard Sri Raveendra, learned Additional Solicitor General appearing for the Commissioner of Customs. Learned Additional Solicitor General submits that the tribunal has committed an error in allowing appeal of the assessee and directing the Customs Authorities to sustain drawback earlier allowed or granted in favour of the assessee on All India Rate basis for the reason that in terms of Customs Notification No. 31/1999 (NT) dated 20/5/1999, the assessee was not entitled to claim drawback at All India rates for the reason that goods exported by them were got manufactured in 100% export oriented unit and if at all the assessee, who is a DTA unit is entitled for any drawback, it could only be under the enabling provisions of Rule 3r/w Customs Notification No. 31/1999 (NT) dated 20/5/1999 r/w Circular No. 31/2000 dated 20/4/2000 and therefore submits that the said question in the reference has to be answered in favour of the Department. Sri Naresh Thacker, learned counsel appearing for the assessee counters the said submission. Sri Naresh Thacker, learned counsel appearing for the assessee points out that the Customs Department has allowed duty drawback in respect of many other DTA units even when they had got the goods exported manufactured in 100% EOUs on job work basis for any other person including a DTA unit is not entitled to duty drawback at all whether on brand rate basis or All Industry rate basis and treating the respondent-assessee differently only in the present case, while department had extended such benefit earlier in favour of other DTA units notwithstanding rule 3 and the notifications issued for this purpose, that such selective action against the respondent is not definitely fair or proper, particularly for reopening concluded duty drawback allowed in favour of other DTAs after issue of circular no 67/1998 and before issue of circular no.31/2000 is placed before the court, such information will support the stand of the assessee and also indicates as to how the department has treated duty drawback applications filed by DTA units similar to the respondents, during this interregnum. Mr. Mr. Raveendra, learned Additional Solicitor General submits that relevant material relating to duty drawback allowed in respect of all DTAs after the year 1995, when duty drawback rules got amended to bring it in conformity with the World Customs Organisation, will be placed before the court, affirmed on oath by a competent officer of the Ministry of Finance and requests for time till 19/11/2010. List these matters on 19/11/2010 for further hearing.” DVSKJ/NAJ : 19/11/2010 Sri Raveendran, learned Addl. Solicitor General, appearing for the petitioners, has placed before the court an affidavit of Sri Banibrata Bhattacharya, Commissioner of Customs, Bangalore, said to be in compliance with the order passed by this court on 12/11/2010. While certain facts relating to M/s. Leela Scottish Lace Ltd., and M/s. L T Karle & Co., Unit-III, are made part of the affidavit and it is also deposed that the irregularities and malpractices indulged in by these two companies were detected by the preventive unit of Bangalore customs and based on such information, cases has been booked at Chennai Air Cargo, Chennai Seaport and Tuticorin Port in respect of both these companies, but the Bangalore customs has not come across any other similar instance of such irregularities claimed towards duty drawback etc. Learned ASG submits that this affidavit is incompliance with the directions/order passed by this court on 12/11/2010. In fact a reading of the penultimate paragraph of the order dated 12/11/2010, reading as under: Mr. Raveendra, learned Additional Solicitor General submits that relevant material relating to duty drawback allowed in respect of all DTAs after the year 1995, when duty drawback rules got amended to bring it in conformity with the World Customs Organisation, will be placed before the court, affirmed on oath by a competent officer of the Ministry of Finance and requests for time till 19/11/2010. Indicates that the order is general in nature and it is not necessarily confined to Bangalore customs and the figures that were required to be placed before the court are figures available at the national level and duty drawback allowed during the period, in respect of the claimants who had put forth claims for duty drawback in the entire country and not merely confined to Bangalore customs commissionerate. While learned ASG submits that gathering of information and such data may take some time, Sri Naresh Thacker, learned counsel appearing for the respondents-claimants. While learned ASG submits that gathering of information and such data may take some time, Sri Naresh Thacker, learned counsel appearing for the respondents-claimants. On the other hand, points out that such facts and figures may be readily available with the directorate of duty drawback, located at New Delhi and the centralized figures will be available with them. It is open to the respondents-claimants to put such efforts as is warranted, secure the information called for by this court and place the same before the court. As the data is related to figures available at national level, it is necessary that a responsible officer of the central board of indirect taxes or a responsible officer of the ministry of finance to support the material/information by an affidavit of such officer. Sri Raveendran, learned Addl Solicitor General, submits that such information will be placed before this court within two weeks and the matter may be listed on 3/12/2010. Sri Naresh Thacker agrees for such a course of action. List the matters on 3/12/2010 for such purpose. Furnish copies of the order dated 12/11/2010 and this order to Sri Raveendran, learned Addl Solicitor General or his colleagues free of cost.” “DVSKJ & NAJ : 3/12/2010 The petitioner-Commissioner of Customs, Bangalore, has placed before the court the affidavit of Mr. Pramod Kumar, Technical Officer, (Drawback), Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, New Delhi, in response to the direction that has been issued by this court on 19/11/2010 to place before the court the information regarding the amounts of duty drawback that had been allowed by the Central Government in favour of the Domestic Tariff Area Units who had claimed duty drawback in respect of goods which had been got manufactured in 100% export oriented units, but nevertheless exported either through such export oriented units on behalf of the DTA units, or got back by the DTA units and have exported the goods from their own premises. This information was called for as it was the submission on behalf of respondent assessee by its learned counsel Mr. This information was called for as it was the submission on behalf of respondent assessee by its learned counsel Mr. Naresh Thacker, that the respondent will be able, not only to sustain the order of the tribunal in allowing such duty drawback in favour of the respondent-assessee, not only on the strength of the interpretation given to the notification governing the issue, but also as a matter of routine and on a regular basis, such units had enjoyed the benefit of duty drawback in respect of goods got manufactured in EOUs, and exported by them. Mr. Raveendra, learned Addl Solicitor General, appearing on behalf of the petitioner-Commissioner of Customs had submitted that the legal position in the light of the subsequent modified notification, particularly Notification No.31/1999 is that such DTA units are not entitled to claim any duty drawback if the goods had been manufactured in the EOU. Learned Addl Solicitor General had submitted that, the relevant information at the All India level, will be placed before the court. It is in keeping with this assurance and to comply with the order, the present information is being placed before court through the affidavit. However, in terms of paras 2 and 3 of this affidavit, it is indicated that except for the respondent and one another unit, it was not within the knowledge of any of the Commissionerates of Customs in the country, namely at Mumbai, Delhi, Chennai, Kolkata, Ahmedabad, Patna, Vishakapatnam, Vadodara, Shillong, Pune, Mysore, Nagpur, Bhubaneshwar and Jaipur that such benefit had been allowed in favour of DTA unites in their jurisdiction. Affidavit asserts that, the respondent unit and another assessee had claimed duty drawback. On goods exported by them but got manufactured through 100% EOU units. In fact, the affidavit asserts that, the figure is virtually nil if these two assesses are excluded! Mr. Thejas, learned counsel appearing for the respondent – assessee submits that, the respondent has received copy of this affidavit only last evening and for responding to this affidavit or for furnishing further information on its side, to make good the assertion that such units had been allowed duty drawback in the past needs some time and given a little accommodation if will be placed before this court and requests for sometime. List this matter for further hearing on 16/12/2010 and in the meanwhile, it is open to the respondent to file and affidavit if information to the contrary is available with them”. “DVSKJ/NAJ : 16/12/2010 Sri Raveendran, learned Addl Solicitor General, appearing for the petitioners and Sri Naresh Thacker, learned counsel appearing for the respondents submits that the matter cannot be taken up today and request to take up the matter on 7/1/2011 and if a full day’s hearing is given, it is convenient for the learned counsel to complete the submissions by both sides. Registry is directed to list the matter on 7/1/2011 and since orders from the Honorable Chief Justice may be sought for the time at which the matter to be listed and list the matter accordingly.” 6. There are two aspects which are required to be cleared before merits of the submissions and respective versions of parties can be considered. Firstly, Sri N R Bhaskar, learned Senior Central Government standing counsel appearing for the Commissioner of Customs has drawn our attention to Misc.Cvl.17563/2010 filed under section 151 of code of civil procedure read with section 130A of the Customs Act for expunction of remarks contained in the orders passed by this court on 3/8/2010 and 27/8/2010. The application is supported by the affidavit of Sri Banibrata Bhattacharya, the Commissioner of Customs, Bangalore, at whose instance references were made to this court. 7. The sum and substance of the affidavit is that presence or absence of the Commissioner of Customs before this court on some of the dates when this court had directed the Commissioner of Customs to be present was neither deliberate not intentional but due to exigencies of work and on such occasions when the Commissioner of Customs could not be present, his office colleagues either the Joint Commissioner of Customs, in-charge of legal section namely Sri N K Gupta or any other officials were present. In the wake of certain submissions made by the learned Central Government standing counsel appearing for the Commissioner of Customs as it was found by this court that the submissions were not commensurate to the requirement on the part of counsel and that certain discrepancies in filing of the reference cases being due to either change of counsel or administrative difficulties, no blame was to be shared by the Commisionerate or the Ministry of Finance and observations contained in these two orders have a bearing on the quality of performance of the Commissioner of Customs and other officials, it can be construed as deficiency or dereliction of duty on their part, which is not otherwise warranted when the concerned officials have been striving their best to perform their duties that the copies of orders are directed to be forwarded to the Ministry of Finance, there can be repercussions unless this court is pleased to expunge such remarks for such purpose the application is made. 8. Sri N RBhaskar, learned senior Central Government standing counsel appearing for the Commissioner submits that remarks could possibly mark the career who are otherwise upright efficient officer and therefore it is just and necessary to expunge such remarks. 9. This court does not pass orders keeping in view a particular person or officer. The order of this court is only as a result of inputs, which this court gets either from parties or from their counsel. The orders are passed at what point of time is solely and totally depending on the facts and circumstances of the case as are presented before the court. It is the duty of the court to pass orders on merits of the case. The orders are not intended either to praise or condemn others, it is immaterial as to whether the orders of the court are construed as a praise or remark reflecting on the quality of the concerned officers. 10. It is not necessary for this court to entangle with incidental aspects of this nature and to get active on such incidental aspects but not relative aspects on the orders passed on that context, however for the purpose of order, it is made clear that whatever observations contained in the orders passed by this court are not intended to reflect the performance of any individual. It is a reflection on the system, the entire administrative set-up and functioning of particular department and ministry as it is experienced in our system and society; the letharginess and irresponsibility permeates of government functioning and things are taken for granted and seldom government machinery is functioning on sound managerial functioning, more often the interest of state has suffered because of this don’t care attitude or irresponsible acts of different officials at different levels. It is but natural for this court to comment when this court has duty to perform the functions, in context of the references to be answered. The tribunal having not performed of its duty of forwarding a proper, correct, full statement of facts, it became inevitable for this court to depend upon the commissioner and the department at whose instance references are made. Even that is also not forthcoming that this court has made such observations at that point of time. Accordingly, the tribunal submitted a statement of case and has referred first four questions, which are common to references TRC 1 to 4/2005 and additional question in TRC No.3/2005. 11. It is in the wake of such developments, we are favoured with 8 paper books to be shared between two, one paper book in each reference said to be containing all the relevant material which was otherwise needed for proper and satisfactory answers to the questions referred in the applications. 12. This development in fact also ensured even the responsibility of coming up with compilation of the provisions of law, rules and notifications etc., which have undoubtedly helped this court to appreciate the respective submissions of behalf of the applicant and the respondent in proper perspective. We do appreciate such submissions on the part of the parties and it is made clear that the earlier order in the context or orientation or direction towards any of the official or person this would dispose of Misc.Cvl.17563/2010 and ordered accordingly. Misc.Cvl.17565/2010, filed for waiver of costs has become infructuous as the Customs Department has already paid costs and receipt of which has been acknowledged by learned counsel for assessee. Therefore, Misc.Cvl.17565/2010 is dismissed as having become unnecessary. 13. That takes us to the preliminary objections raised by Sri Naresh Thacker, learned counsel for the assessee regarding maintainability of these references at the instance of revenue. 14. Therefore, Misc.Cvl.17565/2010 is dismissed as having become unnecessary. 13. That takes us to the preliminary objections raised by Sri Naresh Thacker, learned counsel for the assessee regarding maintainability of these references at the instance of revenue. 14. Sri Naresh Thacker, learned counsel for the assessee draws inspiration for preliminary objections from a judgment of division bench of the very judges of this court in the case of Commissioner of Central Excise, Belgaum vs Fluid Dynamics Pvt. Ltd., reported in 2010 (257) E.L.T. 360 (Kar), wherein this court had occasion to examine the scope of section 35G of the Central excise Act, 1944 and found on the facts of particular case an appeal under section 35G of the Central Excise Act at the instance of revenue was not maintainable and accordingly dismissed the appeals of the revenue at the threshold. 15. Sri Naresh Thacker, learned counsel appearing for the assessee submits that the provisions of section 130A of the Central Excise Act as it stood at relevant point of time for reference to the court from the orders passed by the tribunal if orders involve questions of law and if for the opinion of the tribunal that question required to be further examined and opined by the tribunal or even if the tribunal thinks so if the high court on further application under very section by the aggrieved person seeks a direction to the tribunal to refer particular question and if the high court finds that question does merits examination by the high court and a direction to be issued to make reference being a provision analogous to the present appeal provisions, which is one provided by the legislature on or after passing of Finance Act of 1999, the ratio is equally applicable to the references made under the very statutory provisions but for the earlier period and therefore, submission that a reference at the instance of revenue is not maintainable and there is no need for this court to go into the merits of references, for answering them and the orders passed by the tribunal should be left undisturbed. 16. 16. Sri N R Bhaskar, learned senior central Government standing counsel appearing on behalf of the applicant-commissioner of customs submits that the ratio of judgment in the case of Commissioner of Central Excise, Belgaum vs. Fluid Dynamics Pvt. Ltd., is not applicable to the facts and circumstances of the present case; as it was a case where the commissioner of customs, without taking recourse to proper statutory provisions, even prior to the stage of filing an appeal to the tribunal had caused an adverse order to be passed by taking recourse to a wrong provision of law and an enabling provision in the form of section 35E of the Central excise Act had been overlooked and a further appeal against such an order also by the revenue, one way or the other does not give rise to an appeal under section 35G of the Central excise act. In the case on hand, it is not such a situation. Sri N R Bhaskar, learned senior Central Government standing counsel appearing for the commissioner of customs points out to a formidable reason for rejecting this preliminary objection by drawing our attention that these references are before us because this court had directed the tribunal to make references. The references and orders passed by this court was only after hearing both the revenue and the assessee. If the assessee wanted to take objection, that was the most appropriate time to raise such objection and the assessee not having taken such objection, cannot raise such objection at this point of time after the tribunal in obedience to the order of this court had made references and references having been heard at length for one year and such belated objection should not be entertained. 17. We have examined the respective submissions. 18. As rightly pointed out by Sri N R Bhaskar, learned senior Central Government standing counsel appearing for the Commissioner of Customs, the ratio of judgment in the case of Commissioner of Central excise, Belgaum vs. Fluid Dynamics Pvt. Ltd., is not attracted to the present situation as the matter has reached this court for answering, in reference jurisdiction as enabled under the statutory provision and not by passing or overlooking the provisions by either parties. More importantly, more formidable hurdle in the way of preliminary objections pressed into service by Mr. More importantly, more formidable hurdle in the way of preliminary objections pressed into service by Mr. Thacker is that respondent is virtually stopped from raising such objections before us, while hearing these references, for the simple reason that it should have been raised at a point of time when this court examined the need or otherwise for directing the tribunal to make a reference. It is also noteworthy to mention herein that even the questions we are required to answer as per this order are the very questions which are being directed by this court to be referred by the tribunal for our answers. Therefore, there is no question of the preliminary objection coming in the way our examining merits of the present references. 19. If at all the assessee was not agreeable for this course of action, the grievance or cause of action arose when this court had directed that references be made and that order having not been questioned and further having been allowed to become final, it is not open to the assessee to rise such preliminary objection at this stage. Therefore, this preliminary objection is rejected. 20. The brief facts for the purpose of appreciating the questions required to be answered are:- The respondent is recognized as a Domestic Tariff Area Unit (for short, DTA Unit’) and as submitted by Sri Naresh Thacker, from the year 1992 to 1997 (relevant period), the assessee claiming to have exported goods manufactured out of duties suffered inputs had claimed benefit of duty drawback made available to a person claiming to have exported goods manufactured out of goods imported in terms of section 75 of the Customs Act and the details are as under:- “Total amount of drawback claimed by the respondent TRC Nos Total No. of Shipping bills Drawback claimed Drawback granted pending 1 13 Rs. 19,29,607 Rs. 18,74,554 Rs. 55,053 2 103 Rs. 1,21,59,650.97 Rs. 93,14,838.97 Rs. 28,44,812 3 7 Rs. 3,72,497 Rs. 3,72,497 4 20 Rs. 29,55,621.23 Rs. 26,47,739.60 Rs. 3,07,881.63 Total 143 Rs. 1,74,17,376.20 Rs. 1,42,09,629.57 Rs. 32,07,746.63 Claim of the Department 1. Interest at 24% u/s 28 AB r/w rule 16 of drawback rules in TRCs 1-2. 2. Pre deposit of Rs. 20,28,690/- should not be adjusted towards ineligible drawback. Confiscation of goods valued at Rs. 7,38,95,975 u/s 113 of the Customs Act. Penalty under section 114(iii) of Customs Act. 3. 1,74,17,376.20 Rs. 1,42,09,629.57 Rs. 32,07,746.63 Claim of the Department 1. Interest at 24% u/s 28 AB r/w rule 16 of drawback rules in TRCs 1-2. 2. Pre deposit of Rs. 20,28,690/- should not be adjusted towards ineligible drawback. Confiscation of goods valued at Rs. 7,38,95,975 u/s 113 of the Customs Act. Penalty under section 114(iii) of Customs Act. 3. Penalty under section 114 (iii) of Customs Act 4. Rejection of amount claimed and recovery of drawback wrongly granted”. 21. The claim of assessee for duty drawback was allowed in terms of order dated 19/11/2010 22. However, the assessee had been issued with four show cause notices, relating to exports from different ports to show cause as to why drawback that had been earlier allowed should not be recovered from the assessee and it was pointed out that the assessee had wrongly availed such drawback notwithstanding embargo in respect of goods which had been manufactured in a 100% export oriented unit (EOU for short) and unit situate within export processing zone (‘EPZ’ for short) being denied from claiming such a benefit in terms of Customs Notification No. 67/1998 (NT) dated 1/9/1998. Duty Drawback This (NT) Notification contain New All Industry (AI) rates of Drawback effective September 2, 1998. The Notif. Has been issued in the form of a book i.e. “Duty Drawback on Exports”. It is available from the Customs Department throughout the country. The highlights of the new DBK AI Rates are: SAD and Special Duty Drawback The new levy of 4% Special Addl. Customs Duty has also been taken into account alongwith 5% Special Customs Duty applicable on various imported inputs, while fixing the new drawback rates. Modvat Goods The major benefit extended to all export products on which modvat is restricted to 95%. It compensates the exporters for the 5% Modvat credit which they cannot otherwise avail. This removes the disability of 5% which was making inputs costlier to exporters. Central Excise portion of All Industry Rates of Drawback equivalent to 5% of the total Central Excise allocation even where the Modvat has been claimed, will be allowed as drawback. No longer any need to produce certificate regarding non-availment of modvat availed in respect of export of handloom products, handicrafts including handicrafts of brass artware, finished leather, grey fabrics and other export products which are unconditionally fully exempt from Central Excise duty. No longer any need to produce certificate regarding non-availment of modvat availed in respect of export of handloom products, handicrafts including handicrafts of brass artware, finished leather, grey fabrics and other export products which are unconditionally fully exempt from Central Excise duty. Major changes in rates (1) A cap/maximum limit has been imposed on products having drawback rate above 10% (2) The description of handloom products has been revised to include all varieties of madeups. It will resolve any classification disputes at the cutting edge. (3) TheAll Industry Rates of Drawback in the case of exports of garments from EQUs/EPZ units restored which were earlier deleted in September’ 97 (4) 6 moreitems added to the list of 747 items (5) 219 items get higher rates (6) Rates for 290 items revised/rationalized EDI System In order to ensure smooth and accurate processing of drawback claims in the EDI System each rate has been assigned a separate serial / sub-serial number. 23. The assessee responding to the show cause notices, filed replies dated 13/10/2000, 18/8/2001, 6/12/2000 and 13/4/2000 to four show cause notices dated 16/9/2000, 16/6/2001, 11/8/2000 and 29/3/2000 and contended that assessee had claimed benefit correctly under the relevant enabling provisions of the Act. 24. The assessee disputed that they have wrongly benefited under section 75 of the act; that in fact being a DTA unit having exported goods manufactured from inputs which has suffered export duty; that benefit cannot be denied to the assessee and the incidental fact of goods having got manufactured in a 100% EOU or EPZ should not make nor should have any bearing for the assessee claiming duty drawback; that in fact a relaxation in favour of a 100% EOU and EPZ, who are enabled to take up job works for manufacture from outsiders are required to confine manufactured within bonded area and also to ensure goods manufactured were only exported and with such margin provided under the relevant export policy. So long as the goods exported by the assessee DTA unit was made up of duty suffered goods whether under the Customs Act or Central Excise Act, the assessee is entitled for duty drawback for goods exported and therefore, requested for dropping of show cause notices. 25. So long as the goods exported by the assessee DTA unit was made up of duty suffered goods whether under the Customs Act or Central Excise Act, the assessee is entitled for duty drawback for goods exported and therefore, requested for dropping of show cause notices. 25. It was also claimed that notification referred to and relied upon by the revenue for re-opening under section 124 read with section 125 and 75A of the Customs Act and rule 65 of the drawback rules does not come in the way of DTA unit like assessee from claiming the benefit of duty drawback, notwithstanding the goods having been manufactured in a 100% EOU or EPZ. 26. It was urged that whether or not the exported goods were manufactured inside an 100% EOU or EPZ cannot make any difference to claim the benefit provided to an exporter in terms of section 75A of the Customs Act. 27. The Adjudicating Officer did not find merit in such contentions and therefore passed four different orders dated 22/8/2002 on the four show cause notices, after considering the replies and strangely levied penalty of like amount only in adjudicating orders giving rise to reference numbers 2 & 3 and had chosen not to levy penalties in adjudication orders leading to reference numbers 1 & 4. 28. These orders were the subject matters of further appeals by the assessee before the tribunal. The tribunal found merit in the appeals and allowed all four appeals in terms of four different orders passed in different appeal numbers. It was the turn of the revenue to get aggrieved by the orders passed by the tribunal and the revenue invoked the provisions of section 130A of the Customs Act and sought for directing the tribunal to refer the questions posed by them for the opinion of the high court by filing four different applications, through C.P. Nos. 1138, 1139, 1141 & 1144 of 2003. These applications came to be allowed by the Division Bench of this court as per four different orders passed on 8/10/2003 in C.P. No. 1138/2003, C.P. No. 1139/2003, C.P. No. 1141/2003 and in C.P. No. 1144/2003 of the same, the tribunal has drawn up four references. 29. 1138, 1139, 1141 & 1144 of 2003. These applications came to be allowed by the Division Bench of this court as per four different orders passed on 8/10/2003 in C.P. No. 1138/2003, C.P. No. 1139/2003, C.P. No. 1141/2003 and in C.P. No. 1144/2003 of the same, the tribunal has drawn up four references. 29. The questions referred for our answers, though are four in number, which are common to all the four references and with one additional question in TRC No.3 of 2005, involving a situation where non-mentioning or not prevailing of the fact of the assessee’s goods being manufactured in a 100% EOU and EPZ unit, amounts to mis-declaration which is essentially one relating to justification or otherwise to levy penalty in the two orders leading to TRC no 2 and 3 of 2005 and the main question being as to whether the customs notification no 67 of 1998 dated 1/9/1998 as amended by customs notification no 31 of 1999 dated 29/5/1999 and in the light of corresponding board circulars, could deny an assessee like the respondent a DTA unit who had got the exported goods manufactured at the premises of an 100% EOU and EPZ, the benefit of duty drawback as is available in terms of section 75A of the Customs Act read with the provisions of customs and Central Excise Duty Drawback Rules 1995 (for short, the Drawback Rules). 30. The assessee, in fact, availed duty drawback, initially the revenue allowed it, but later during the routine investigation etc., had noticed that DTA unit which had put forth claims for duty drawback had got it manufactured through its three sister concerns which are 100% EOU/EPZ units and considerable amount of goods had been got manufactured by the DTA unit at its subsidiary an exclusive 100% EOU and the export having taken place at the places of the location of the 100% EOU viz., at Tuticorin sea port, Chennai sea and air ports and Bangalore airport. 31. 31. On a close scrutiny, customs officials had found that while effecting the export of the goods in respect of which duty drawback had been claimed, not all relevant facts had been disclosed, that if it is a fact that export of goods had taken place after getting the same manufactured in a 100% EOU on job works basis by outside manufactures and the 100% EOU undertaking jobwork for utilizing its idle time of machinery for want of commensurate manufacturing work relating to its own export, the two notifications referred to above came in the way of such benefit or concession of duty drawback being availed by the assessee and it is on such premise, the assessments were reopened and duty drawback claimed and received by the respondent-assessee was directed to be restored to the state. 32. While such was the view of the adjudicating authority, the tribunal in the assessee’s appeal, found that the commissioner had recorded findings on an erroneous or incorrect interpretation of the notification no 67 of 1998; that while the notification does come in the way of the goods manufactured in a 100% EOU claiming the benefit of duty drawback on being exported by a DTA when the goods was manufactured in the 100% EOU by availment of its idling period and spare manufacturing capacity, nevertheless for the purpose of understanding as to who is the manufacturer, for whose benefit the goods were manufactured etc., the DTA unit having supplied the raw material for getting manufactured finished products and finished products though manufactured inside a 100% EOU should nevertheless be taken as having been manufactured by the DTA unit itself. Such goods even as per the finding of the customs officials were admittedly removed from the 100% EOU on the basis of transshipping bills filed in sealed letters were being sent by proper officer stationed at the EOU to the proper officer at the ports, it should be deemed to be an export effected by a DTA unit and therefore on a combination of these two inferences, the resultant position is that goods were manufactured on behalf of DTA and goods were exported by a DTA unit itself; there are no reasons to deny the benefit of duty drawback as had been claimed by the DTA unit notwithstanding there being a specific bar in terms of two customs notifications for duty drawback allowed in respect of goods manufactured at a 100% EOU on job work basis to outsiders. 33. It is this line of reasoning as indicated in the order dated 2/1/2003 passed by the tribunal in its order no F2/2003, which has been followed and applied in the decisions rendered in the other three appeals of the assessee, leading to other references, while 1st order of the tribunal is the subject matter of reference in TRC no 4 of 2005. 34. It is in this background of the correctness or otherwise of the order in original and the correctness or otherwise of the order of Tribunal and precise questions posed for out answer, arguments are addressed by the learned counsel for the revenue and the assessee. 35. 34. It is in this background of the correctness or otherwise of the order in original and the correctness or otherwise of the order of Tribunal and precise questions posed for out answer, arguments are addressed by the learned counsel for the revenue and the assessee. 35. Submission on behalf of the revenue, initially by Sri Mohan, learned senior Central government standing counsel, later joined by N R Bhaskar, also learned Senior Central Government standing counsel and much later joined by Sri Raveendran, learned Additional Solicitor General, is that there is an embargo in respect of goods manufactured by a 100% EOU or EPZ; that the notifications during the period of their operation i.e. from 1/9/1998 onwards, since when the notification no 67 of 1998 was in force and even as per the enabling circulars such as circular no 67 of 1998, while even a 100% EOU or EPZ is permitted to undertake manufacture of goods for outsiders on job work basis, which implies that the raw material supplied by the outsiders, the regour of the notification is in no way relaxed or reduced; that in the background of such legal position the authorities also having found that the assesses who has claimed duty drawback on the basis that it had allowed its goods to be manufactured in a 100% EOU and EPZ on job work basis (in the instant case all three units being subsidiaries of the assessee and its sister concerns) and having not placed before the authorities any material or proof of any payment of duty in respect of the raw materials (inputs) which had been sent to 100% EOU and EPZ, the assessee being not definitely entitled to claim any duty drawback, both because of the legal position and the factual position; that the tribunal has committed a grave error in law in restoring the duty drawback in favour of the assessee in respect of the so-called exports of goods, which the assessee had claimed to have secured and manufactured in the 100% EOU and EPZ on job work basis; that the tribunal has virtually proceeded to grant orders in favour of the assessee on assumptions and presumptions; that it is not for the tribunal to call in aid a fiction to infer that the goods though actually and factually manufactured by 100% EOU or EPZ, it should be taken to be one as manufactured by a DTA, in the light of the trade parlance that had prevailed in the industry, as it found in para-5 of the tribunal’s order. 36. Reference is made to the decision of the Supreme court in the case of Chemicals & Fibres of India LTd Vs Union Of India ( 1991 (54) ELT 3 (SC) – paras-8 to 11),to drive home the concept of duty drawback and also a decision of a learned single judge of this court in the case of KarleInternational vs Commissioner of Customs, Bangalore (2009 9243) ELT 658(KAR)). 37. It is also the submission of Sri Raveendran, learned ASG appearing for the revenue, that in the wake of board circular no 31 of 2000 dated 20/4/2000, the revenue will be stopped from denying the benefit of brad rate duty drawback even in respect of goods manufactured in a 100% EOUs got manufactured on job work basis by a DTA unit in the wake of law as has been developed relating to the binding effect of the board circular on the revenue. 38. The sum and substance of submission of Sri Raveendran, learned Additional Solicitor General is that the tribunal has gone wrong in allowing the appeals by holding that the assessee is entitled to claim duty drawback irrespective of the contents of customs notification no 67/1998 read with customs notification no 31/1999; that as long as these notifications held the field, there was denial or benefit of duty drawback to goods manufactured or exported from a 100% EOU or EPZ; that notification was precisely intended to achieve such result and such purpose. The tribunal should not have overlooked objects, purpose and contents of these notifications and therefore orders passed by the tribunal are not sustainable. The findings of the tribunal based on which appeal has been allowed in the form of questions sought to be answered before this court are not sustainable. The tribunal has decided the questions erroneously and therefore, they are required to be corrected. 39. The findings of the tribunal based on which appeal has been allowed in the form of questions sought to be answered before this court are not sustainable. The tribunal has decided the questions erroneously and therefore, they are required to be corrected. 39. It is pointed out with reference to customs notification no 67/1998 dated 1/1/1999 and as modified by customs notification no 31/1999 dated 20/5/1999, which had replaced earlier notification for operation with effect from 1/6/1999, there is a clear embargo for allowing duty drawback in respect of export of any of the commodities/products if such commodity/product is manufactured and/or exported by a 100% EOU in terms of relevant provisions of export and import policy in force and manufactured and/or exported by any of the units situated in the Free Trade Zones/Export Processing Zone (EPZ) as two of the subsidiaries of assessee wherein goods were manufactured or be themselves EOU and another unit where the goods are manufactured and exported are located in EPZ (M/s.Leela Lace International, Cochin). Out attention is drawn to sub-clause © and (d) of clause 2 of general notes of notification, relating to denial of duty drawback in certain situations to submit that irrespective of claims put forth by the assessee, assessee was not entitled to claim the benefit available in terms of section 67A of the Customs act or in terms of the statutory provisions of rules and notifications made in terms of the rules. 40. It is therefore submitted that for the period during which these notifications held the field, assuming that the assessee had got its goods manufactured and exported through such units and assuming that inputs for the purpose of production of goods exported had suffered customs duty at some point of time, in view of the embargo in terms of the notifications, duty drawback had been wrongly availed by the assessee while filing shipping bills and it has been subsequently noticed and rightly the adjudicating officer denied and called upon the assessee to return the amount. The tribunal on its total misunderstanding of the scope of notification no 67/1998 dated 1/9/1998, modified by customs notification no 31/1999 dated 20/5/1999 has allowed the appeals. The findings recorded by the tribunal for allowing the appeals as indicated in the appeals are required to be modified and answered on the touchstones of the notifications. 41. The tribunal on its total misunderstanding of the scope of notification no 67/1998 dated 1/9/1998, modified by customs notification no 31/1999 dated 20/5/1999 has allowed the appeals. The findings recorded by the tribunal for allowing the appeals as indicated in the appeals are required to be modified and answered on the touchstones of the notifications. 41. On the other hand, Sri Naresh Thacker, learned counsel appearing for the respondent-assessee had put forth several contentions and submitted that the tribunal has rightly answered the questions, in the circumstances, the tribunal had no choice to record findings as recorded in the orders of the tribunal. The tribunal has indicated that assessee was entitled to claim duty drawback independent of the notifications, denial of the benefit is only in respect of products manufactured by export oriented unit for its own self when 100% export oriented unit undertakes manufacturing for others like the assessee on job work basis during idling capacity and it is not that export oriented unit had manufactured goods for itself but it had manufactured the goods for the purpose of DTA unit like the assessee and just because the assessee had got goods manufactured in an 100% export oriented unit during idle capacity does not mean that DTA unit which is otherwise entitled to duty drawback in respect of its exports should be denied of the benefit of duty drawback and therefore there is no need to modify or reverse findings and conclusion arrived at by the tribunal. 42. Sri Naresh Thacker, learned counsel appearing for the assessee also submitted that assuming that such a notification seems to have in any way deny or prevent an exported like a DTA unit, that cannot be a criterion denying the benefit of duty drawback as the benefit of duty drawback is essentially conferred on exporter in terms of the provisions of section 75 of the Customs Act, 1962 and a benefit conferred in terms of the provisions of the Customs Act cannot be denied when the condition for claiming the benefit is fulfilled by the exporter with reference to a notification which had been issued mainly in the context of regulating in the functioning of an export oriented unit. A DTA cannot be denied benefit for mere reason of getting goods manufactured in an 100% export oriented unit, particularly as in the present case, export was not by an export oriented unit but export was on behalf of DTA though the goods were manufactured in 100% export oriented unit. Even in such an event, requirements of section 75 of the customs Act are fulfilled and therefore notification cannot be pressed into service to deny the benefit of duty drawback to an exporter like the assessee. 43. Sri Naresh Thacker, learned counsel appearing for the respondent-assessee has evaluated his submissions to demonstrate as to how the notification cannot deny in any way the benefit of duty drawback to the assessee. The object of the notification which has to be understood in the manner as contended by the revenue, would defeat the benefit of duty drawback in terms of section 75 of the Customs Act. 44. Mr Naresh Thacker, learned counsel appearing for the assessee has also contended that circular issued by the customs department in the context of two notifications and particularly notification no 31/1999 operates against the revenue to contend to the contrary the contents of circular to deny the benefit of duty drawback in favour of the assessee for the principle of estoppels operates against the revenue, particularly in a situation where duty drawback had been initially allowed in favour of the assessee and has been withdrawn by re-opening of assessment as per the adjudicating orders passed by the commissioner. 45. It is also submitted that in the scheme of things it has to be inevitably presumed that inputs which had been gone into manufacture of export products had suffered customs and excise duty. As the very purpose of section 75 of the customs act is to provide of reimbursement of such duties suffered on products which go into making of export products. The denial in the present case is virtually runs totally contrary to the scheme of duty drawback envisaged by the legislature in terms of section 75 of the customs act. 46. As the very purpose of section 75 of the customs act is to provide of reimbursement of such duties suffered on products which go into making of export products. The denial in the present case is virtually runs totally contrary to the scheme of duty drawback envisaged by the legislature in terms of section 75 of the customs act. 46. In support of his submissions, Sri Naresh Thacker, learned counsel appearing for the assessee would rely upon the principle that while understanding or admitting the case, the courts will have to keep in mind the purpose for which the notification is issued and should understand and interpret in a manner to achieve the purpose and object of notification. 47. Sri Naresh Thacker, learned counsel has placed strong reliance on the judgment of Division Bench of High Court of judicature at Madras in the case of Commissioner of Customs, Tuticorin vs. L T Larle & Co ( 2007(207) ELT 358 (Mad.)) to submit that the high court had taken a view that denial of duty drawback claim to a DTA unit just because it had got the goods manufactured in its premises in 100% export oriented unit cannot come in the way of DTA unit in terms of section 75 of the act and therefore, submitted that this judgment squarely covers the case of the assessee and prays for answering the questions under reference in favour of the assessee. 48. We have bestowed our attention to the submissions made at the Bar with reference to the pleadings which have got swollen with the revenue coming up with supplemental paper books and the assessee not lagging behind and we have also examined the decisions cited at the Bar. 49. Before embarking and expressing our view while answering the questions, we notice that questions no.3 reading as hereunder is not really a question that had arisen before the tribunal or had been answered by the tribunal one way or the other warranting our answer to this question and therefore we find it necessary to examine and answer question no.3 reading as hereunder:- “whether the respondent was eligible for drawback as per All Industry Rate or Brand Rate?” 50. On our pointing out this situation to the learned counsel appearing for the parties, both Sri Naresh Thacker, learned counsel appearing for the respondent-assessee and Sri N R Bhaskar, learned senior Central Government Standing Counsel appearing for the revenue agree this precise question did not arise before the tribunal and the tribunal has not recorded any finding one way or other. 51. Accordingly, we examine the other questions. The real question though is distributed in the three questions viz., common questions in TRC nos 1,2, and 4 of 2005, is one which can be put into one question as to whether the customs notification no 67/1998 read with circular of even number and customs notification no 74/1999 read with circular of even number, would come in the way of an assessee like the respondent – a DTA unit – from claiming the benefit of duty drawback available to a domestic exporter in terms of the provisions of 75 of the Act. 52. There is no dispute that Section 75 is the statutory provision which enables the benefit of duty drawback in respect of goods exported and depending upon the nature of inputs, the rate of duty drawback is permitted and of course which are all made subject to the rules made under sub-section (2) of section 75 of the Act. There is no dispute with regard to the contents of sub-section (1) of section 75 of the act and therefore no further need for our examination of this statutory provisions. However, sub-section (2) of section 75 of the act has some significance and it is useful for us to refer to the statutory provision, which is as under: 75. There is no dispute with regard to the contents of sub-section (1) of section 75 of the act and therefore no further need for our examination of this statutory provisions. However, sub-section (2) of section 75 of the act has some significance and it is useful for us to refer to the statutory provision, which is as under: 75. Drawback on imported materials used in the manufacture of goods which are exported (1) Xxx (2) The Central Government may make rules for the purpose of carrying out the provisions of subsection (1) and, in particular, such rules may provide- (a) For the payment of drawback equal to the amount of duty actually paid on the imported materials used in the manufacture or processing of the goods or carrying out any operation on the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture or processing of export goods or carrying out any operation on export goods of that class or description either by manufacturers generally or by persons processing or carrying on any operation generally or by any particular manufacturer or particular person carrying on any process or other operation and interest, if any, payable thereon; (b) For specifying the goods in respect of which no drawback shall be allowed; (c) For specifying the procedure for recovery or adjustment of the amount of any drawback which had been allowed under sub-section (1) or interest chargeable thereon; (d) For the production of such certificates, documents and other evidence in support of each claim of drawback as may be necessary; (e) For requiring the manufacturer or the person carrying out any process or other operation to give access to every part of his manufactory to any officer of customs specially authorized in this behalf by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to enable such authorized officer to inspect the processes of manufacture, process or any other operation carried out and to verify by actual check or otherwise the statements made in support of the claim for drawback. (f) Forthe manner and the time within which the claim for payment of drawback may be filed 53. (f) Forthe manner and the time within which the claim for payment of drawback may be filed 53. It is also a fact that central government has framed the rules known as the Customs and Central excise Duties drawback Rules, 1995, which, though called or terms as Rules, in fact, controls and regulates the operation of the provisions of sub-section (1) of section 75 of the act, as is indicated as to what conditions in the ending part of the sub-section (1), reading as under: …the central government may, by notification in the official gazette, direct that duty drawback shall be allowed in respect of such goods, in accordance with and subject to the rules made under subsection (2). 54. In terms of the power vested in the central government under sub-section (2) of section 75 of the act read with section 37 of the Central Excise Act, 1944, the Central government had made the Customs and Central Excise Duty Drawback Rules 1995. 55. In the context of the dispute relating to the entitlement of duty drawback when once the statutory provision imposes an embargo, in fact a total embargo, from claiming any drawback in respect of goods if they are all goods brought into existence under certain circumstances and using certain inputs is to be found in the second proviso to sub-rule (1) of Rule 3 of the Drawback Rules, reading as under: 3. Drawback – (1) Subject to the provisions of – (a) The Customs Act, 1962 (52 of 1962) and the rules made thereunder (b) TheCentral Excises and Salt Act, 1944 (1 of 1944) and the rules made thereunder, and (c) These rules, A drawback may be allowed on the export of goods at such amount; or at such rates, as may be determined by the central Government: it cannot be read otherwise at all. 56. 56. In the present examination, we are not going into the question as to the rate at which an assessee can claim duty drawback if duty drawback is allowed as per the statutory provisions and if the assessee is entitled to for the same, as the basic question even when it is read in terms of the three questions referred to above, is only a question relating to entitlement of duty drawback and not the rate etc., in the wake of the customs notifications and circulars referred to above and therefore the entire examination has to necessarily revolved around the language, meaning and the understanding of the two customs notification referred to above. It would be profitable for examination to quote the relevant part of customs notification no 67/98 reading as under: Xxx 2. Therates of drawback specified in this said table shall not be applicable to export of any of the commodities/products if such commodity/product is – (a) Manufactured partly or wholly in a warehouse under the section 65 of the customs act, 1962 (52 of 1962) (b) Manufactured and/or exported in discharge of export obligation against an Advance Licence issued under the Duty Exemption Scheme of Export and Import Policy in force: Provided that, wherein exports are made against value based advance licences issued on or after 1st April, 1995 in discharge of export obligation in terms of notification no. 79/95 Cus, dated the 31st March, 1995 or against quantity based advance licences issued on or after 1st April, 1995 in discharge of obligation in terms of notification no 80/95-Cus, dated the 31st March, 1995, or against Advance Licences issued on or after 1st April, 1997 in discharge of export obligation in terms of notification no 31/97-Cus, dated the 1st April, 1997, drawback at the rate equivalent to Central Excise allocation of rate of drawback specified in said table shall be admissible subject to the condition specified therein. Provided further that where in terms of the notes given under various serial /sub-serial number the reduced rates of drawback applicable to the export made against quantity based advance licences have been specified, the said rates shall also be applicable for the exports made against quantity based advance licences issued on or before 31st March 1995; (c) manufactured and /or exported by a unit licensed as hundred percent export oriented undertaking in terms of the relevant provisions of the Import and Export Policy in force; (d) manufactured and/or exported by any of the units situated in the Free Trade Zones/ Export Processing Zones (e) manufactured and exported in terms of clause (b) of sub-rule(1) of Rule 12 of the Central Excise Rules, 1944 (f) manufactured and/or exported in terms of clause (b) of sub-rule (1) of Rule 13 of the Central Excise Rules, 1944 (g) manufactured and/or exported availing of the facility under the Duty Entitlement pass Book Scheme as contained in paragraph 7.25 read with paragraph 7.29 of the Export and Import Policy 1st April, 1997 – 31st March, 2002. Provided that nothing contained under clause (a) to (g) shall prohibit payment of drawback at a particular rate/amount if it has been specifically authorized under these General Notes or under any Serial/Sub-serial number in the said table. 57. This notification was superseded by customs notification no 31/999 with effect from 1/6/1999 and therefore exports in respect of which the assessee had claimed duty drawback upto 31/5/1999 were exports which were covered and regulated by customs notification no 67/1998 and the circular issued by the department in the context to the notification, at the being more in the nature of a clarificatory information and for elucidating meaning and contents of the customs notifications even the same is not discernable to the members of the trade and to some extent trying to apprise the trade and commerce the background under which the notification had been issued and the purpose and object of the notification. 58. 58. Customs notifications no 67/1998 and 31/1999, which are almost in pari material and the only difference even as submitted at the Bar by the learned counsel for the respondent-assessee being the differentiation in the rates of duty drawback as notified in terms of the customs notification no 31/1999, as both the notifications were issued by the central government exercising the powers vested in it under Rules 3 and 4 of the Duty Drawback Rules. Rule 4 enables central government to revise the rate of duty drawback as might have been allowed or permitted in terms of the provisions of Rule 3 and as notified earlier and that is precisely how the customs notification no 31/1999 has brought about changes in the rate of duty drawback in respect of different goods and class of goods mentioned in the very notification. 59. For our present purpose, it is sufficient to notice the embargo as is provided in clauses (1, (b), (c) and (d) of Note-2 of the two notifications. In fact we can even skip clause-b and concentrate on clause-c, which is one relating to the consequences that befall on goods manufactured and/or exported by 100% EOU units and clause-b relating to goods manufactured and/or exported by a unit located in an export process zone. Significance is that the respondent – DTA unit had got its goods which it claims to have exported in two of its 100% EOUs and one EPZ and therefore clauses (c) and (d) of Notes – 2 of the two notifications, are automatically attracted and operate. 60. The language of the notifications, rule and the section, make it very clear that the benefit of duty drawback in respect of goods manufactured at a 100% EOU or EPZ unit is not available when such goods are exported as benefit of duty drawback is available only when the inputs of goods manufactured fro exporting had suffered duty i.e. customs duty when imported and even assuming that some part of it has suffered excise duty. 61. 61. Though an attempt was made on behalf of the respondent-assessee by Sri Naresh Thacker, learned counsel, by pointing out that the export whether through a 100% EOU or EPZ or by them as goods had reached the customs port directly from their units and therefore it should be taken or deemed that export is by a DTA unit itself, this argument is not of much significance for the simple reason that disqualification in terms of the clauses (c) and (d) of Note-2 of the notifications, are attracted even when the exported goods is merely manufactured in a 100% EOU or EPZ irrespective of the goods being exported either by a 100% EOU or EPZ or DTA unit in any other manner and on its own. 62. The argument that the provisions of Section 75 of the Act being one for conferring a benefit and an understanding of such provision should be to further the object of the conferring the benefit to a manufacturer when exported goods and particularly having regard to the scheme of the provisions, which is basically one for encouraging exports to augment foreign exchange reserve, though, no doubt, appears to be attractive in the first place, it is only a flattering to deceive the benefit of duty drawback as enabled under Section 75 of the Act, is expressly and specifically made subject to the Rules framed thereunder, which we have referred to above and the further notification issued in the context of the implementation or operation of the provision. 63. Therefore, when the notifications read with the rules and the section expressly deny the benefit of duty drawback in certain situations and in respect of certain goods, there is no question of the benefit being claimed or extended in contravention with the statutory provisions and the statutory notifications, more so when the language of the notifications, rules and the section is clear, emphatic and unambiguous. 64. It is also well settled principle of understanding and interpreting taxing provisions, particularly the exemption provision found in a taxing stature, which is an exception that any exemption is to be express and there is no exemption by implication or by a logical deduction. 65. 64. It is also well settled principle of understanding and interpreting taxing provisions, particularly the exemption provision found in a taxing stature, which is an exception that any exemption is to be express and there is no exemption by implication or by a logical deduction. 65. Though Sri Naresh Thacker, learned counsel for the respondent-assessee had made an attempt to submit that clauses © and (d) providing for denial of a duty drawback claim andin the nature of an embargo, should be understood in the context of import-export policy of the government in force and when the policy of the government was to promote exports, providing incentives to exporters by way of benefit in the form of duty drawback and providing for such benefits being with the main purpose of augmenting the foreign exchange reserve etc., the significance of the 100% EOU undertaking in terms of the relevant provisions of export-import policy is only to the establishment of a 100% EOU in terms of the policy and nothing more and at any rate the export-import policy cannot regulate or override the provisions of the Act, Rules and the notifications issued under these statutory provisions. In fact, there is no conflict or scope for understanding in the manner as is sought to be submitted by the learned counsel for the respondent-assessee. To this effect is the view taken by the courts including the Supreme Court and the interpretation to be placed in respect of an exemption provision is well settled in law, for us to either to get confused or to take a contrary view and to put the matters beyond any semblance of doubt or controversy we may safely refer to any rely upon the observations contained in the judgment of the Supreme Court in the case of Commissioner of Central Excise, Chandigarh-1 vs Mahann Dairies (2004 -11 SCC 798) and reading as under: “8 it is settled law that in order to claim benefit of a notification a party must strictly comply with the terms of notification. If on wordings of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred” This view is reiterated by the Supreme Court in the subsequent cases also and as indicated in the case of Tata Iron & Steel Co Ltd vs State of Jharkand & others ((2005 ) 4 SCC 272) and observed that: Eligibility clause, it is well settled, in relation to exemption notification must be given a strict meaning, 66. Though Sri Naresh Thacker, learned counsel for the respondent-assessee has placed reliance on the decision of the Supreme Court in the case of Government of India vs Indian Tobacco Association (2005 (187) EL; T 162(SC) – PARA-28) to submit that even while the understanding and interpreting an exemption provision in a taxing structure, not only a purposive interpretation should be given, the doctrine of fairness should always loom large in considering the relevance and while construing a statute. We reiterate that it is precisely what is done by us in the present case, but unfortunately, the resultant position is that it operates against the respondent- assessee and in the case the Supreme Court found a special exception in the case on their hands viz., in the case of Indian Tobacco Association (supra) and was able to make a distinction from the celebrated principles which were referred to above, which have been laid down by the Apex Court itself in earlier decisions. 67. Bethat as it may, in the present case, no such difficulty arises for us, as the language of the statutory provisions, rules and the notifications are clear, unambiguous, strict and plain and it is not for us to unnecessarily indulge in an exercise of interoperation of or being required to call in aid other doctrine which are neither relevant nor attracted to the present situation. In so far as taxing matters are concerned, the celebrated principle is that there is neither fairness nor equity in tax; in fact there is no justice in tax. Either it is taxed or not taxed and not because it is just, fair or not, but because the authority having power to levy tax has chosen to levy and tax in accordance with the procedure and in terms of the constitutional provisions! 68. Either it is taxed or not taxed and not because it is just, fair or not, but because the authority having power to levy tax has chosen to levy and tax in accordance with the procedure and in terms of the constitutional provisions! 68. Even in respect of an exemption matter, the exemption is as conferred by statute and not either as is sought to be given by courts or as is understood by courts by way of deductions or by way of extension to similar situations. An exemption is only in respect of those circumstances and persons or groups who are specifically mentioned for the exemption and not by way of extension of similar situations or similarly placed persons or even similar goods. 69. It is of considerable significance to understand the provisions of Section 75 of the Act either for the purpose of levy of duty, customs or exercise, or for the purpose of allowing a duty drawback or refund of the levy is in respect of the goods identified in particular form and the assessee like instant assessee comes into the picture only for the purpose of convenience of collection. 70. Likewise, the benefit of duty drawback is in respect of goods exported if a particular goods has fulfilled the requirement of exemption provision and strictly in terms of exemption provision. On a close and detailed examination of the relevant notifications, we find that there is absolutely no scope for manufacturer like the respondent DTA unit to claim the benefit of duty drawback in respect of goods manufactured and exported are manufactured at an 100% EOU or EPZ so long as the customs notification 67/1998 and 31/1999 hold the field and govern the allowing of duty drawback. 71. Though submissions were made at the Bar for some time with regard to the entitlement for claiming duty drawback, what is popularly known as brand rate, but in terms of the statutory provision, the duty as had been actually suffered and which has paid and is made good by the assessee claiming drawback to that extent is a possibility in terms of the latter notification and that the assessee is entitled to etc. that is not the issue before us and the issue before us is in the form of the questions referred for our consideration and there is no occasion for us to examine this position as the questions referred for out opinion are not in the context of the entitlement of the assessee; that what is popularly known as brand rate or on the actual production of evidence in respect of duty suffered, inputs used for manufacture of goods which have been exported. 72. Be that at it may, so long as the power of disqualifying the goods manufactured in a 100% EOU and EPZ unit remains on the statute book, in the sense, so long as these two notifications (nos 67/1998 and 31/1999) held the field for the period during which they operate, the question of considering any duty drawback does not arise unless the very notifications have enabled an exporter to claim any duty drawback within the scope of the notifications, but that question is not an issue before us and therefore we are not examining the submissions made at the Baron this aspect of the matte. 73. It is for this reason we answer the first question in the affirmative, holding that the tribunal has committed an error to characterize the order in original as bad and not sustainable; question no 2 is answered in the negative, holding that the tribunal was not right in allowing the appeals of the assessee and awarding duty drawback as per all industry rates against the provision of notification nos 67/1998 and 74/1999; question no 4 is answered in the affirmative, holding that the order (passed by the tribunal runs contrary to the rules, circulars, notifications and procedures as prescribed under the act. 74. 74. Though learned counsel for the respondent-assessee has placed reliance on the decision of a Division Bench of the Madras High Court in the case of L T Karle (supra) to contend that in terms of the notification issued under the Rules 3 and 4 of the duty drawback rules read with sections 74, 75 and 76 of the act and on a harmonious reading of the circulars, notifications and the statutory provisions and on a reasonable construction of the statutory provisions, the benefit of duty drawback should be given in similar situations, with great respect, we are unable to subscribe to this view and we beg to differ, for the reasons we have already indicated above. In our considered opinion, there is no need to further discuss the details of the judgment in L T karle case, more particularly as the judgment is only of persuasive value and we have with respect, unable to agree with the reasoning and the line of logic found in judgment of LT Karle. 75. Question no 4 arises in TRC no 2 and 3 of 2005 and it relates to the justification or otherwise of the levy of penalty on the assess on the premise that it amounted to misdeclaration or suppression for the claim of duty drawback which was otherwise not available to the respondent-assessee. 76. Rather strangely even the adjudicating authority had levied penalty only in two orders, whereas in other two orders, it is silent. 76. Rather strangely even the adjudicating authority had levied penalty only in two orders, whereas in other two orders, it is silent. Be that as it may, at this stage, it is not for us to reexamine or go into this question, but we shall rest content with answering of this question and we find that while the original authority took an empathic view that the non-declaration of the factum of goods being manufactured or got manufactured at a 100% EOU or EPZ unit did amount to a misdeclaration particularly as on the reading of the relevant portion of the order of the tribunal, dealing with this aspect of the matter, it is indicated that shipping bills were prepared by 100% EOUs and EPZs and therefore no blame could have been laid at the door of the DTA unit and as the shipping bills were got prepared by the 100% EOUs and EPZs and particularly, the tribunal for reversing the order has given the following reasons: It appears that the commissioner has strongly relied upon and stressed on the fact that clauses (f), (g) and (h) appearing in the declaration of the Shipping bills filed by M/s. LSLL on which the goods were exported in this cases were not deleted. That has been considered to be a reason for violation of provisions of sub-section 2 of section 50 of the Customs Act 1962 to constitute a mis-declaration on the shipping bills, which have been considered a raise a liability for confiscation under section 113(i) of the Customs Act, 1962. Since the goods had been allowed to be exported and were not available physically for the confiscation, the commissioner held that they were deemed to be liable for confiscation under the said act, invoking a liability for penalty under section 114(iii) of the Customs Act 1962. When we find that the owner, manufacturer and exporter of the subject goods declared on the shipping bills in question in M/s. LSLL then there was no question or requirement for effecting the actual declarations under the clauses (f), (g) and (h) of the shipping bills. When we find that the owner, manufacturer and exporter of the subject goods declared on the shipping bills in question in M/s. LSLL then there was no question or requirement for effecting the actual declarations under the clauses (f), (g) and (h) of the shipping bills. Therefore, once the EOUs and or EPZs are not the owner, manufacturers and or exporters of the subject goods, which were actually to be exported on the shipping bills of M/s LSLL, any mention of the goods having been manufactured and or exported by any EOU or and an EPZ unit, or from a bond under section 65, would amount to a mis-declaration. We would consider, that in not scoring out the clauses (f), (g) and (h) in the declarations on the shipping bills would show the bonafide of M/s. LSLL and their belief at the time of export. The statement of various persons notwithstanding, since those statements are interpretations of the deponents, and not the correct position of law, as to the owner, manufacturer and exporter of the subject goods. Therefore, not scoring the clauses, which have been held to be a cause for invoking liability for confiscation under section 113(i) is not found, as also there is no other allegation of mis-declaration of material facts about description, value and quantity of the goods under export, the penal clause under section 114(iii) as invoked and applied on the exporter and the other appellant viz., M/s. LLIL cannot be upheld. We find the reasoning given by the tribunal for reversing the view taken by the adjudicating authority to be very strange to comment in a mild manner, as the reasoning is no reason and does not stand to logic or relevant to the facts. 77. It is the respondent-assessee-a DTA unit-which claimed the benefit of duty drawback. It was the duty of the assessee to have placed all facts and figures relating to the manner in which it acquired the goods, where goods were manufactured, what amount of duty was paid or had been suffered on the inputs used for manufacture of goods exported and under what specific provisions the duty drawback was being claimed. 78. It is well known in tax parlance that it is the responsibility of a person claiming an exemption to place all necessary supportive materials to disclose all relevant facts and to claim the benefit. 78. It is well known in tax parlance that it is the responsibility of a person claiming an exemption to place all necessary supportive materials to disclose all relevant facts and to claim the benefit. A non-mention here and suppression there or even omission to mention a relevant fact, amounts to a nondisclosure and when this is in the context of claiming a special benefit like duty drawback assumes considerable significance. 79. It is well known that in so far as the penalties levied under the fiscal provisions are concerned, an element of mens rea is read into by the statutory provisions and mere omission of failure to do a thing may also result in the levy of penalty. 80. Here is a case where the respondent-assessee claimed a positive benefit, but had not disclosed the necessary or relevant facts, particularly the factum of the goods having been manufactured at a 100% EOU or EPZ unit while preparing and presenting the shipping hills and presented at the export duty port, cannot absolve the respondent-assessee as is sought to be made by the tribunal, as the respondent was fully aware of the places of manufacture and more so when the EOU and EPZ units are assessee’s sister concerns or subsidiaries. In this background and circumstance, we have no doubt in our mind that the conduct of the assessee constitutes a clear suppression or misdeclaration to make gain which was otherwise not enabled under the statutory provisions and therefore the necessary consequences inevitably befalls. We find that the adjudicating authority was fully justified in invoking penalty provisions and there was absolutely no scope or reason for the tribunal to reverse this finding. We find that the tribunal has gone more by the outcome of the main matter than to bestow commensurate attention on this aspect. 81. Be that as it may, we answer this question in the negative holding that the tribunal was not right in holding that non-mentioning of goods manufactured by the 100% EOU or EPZ unit does not amount to misdeclaration in violation of the provisions of sub-section (2) of section 50 of the act. 82. In the result, all these references are answered accordingly, the tribunal is directed to bring the decisions in the four appeals before it in conformity with the answers that we have given in these references and to pass orders accordingly. 82. In the result, all these references are answered accordingly, the tribunal is directed to bring the decisions in the four appeals before it in conformity with the answers that we have given in these references and to pass orders accordingly. Registry is directed to communicate this decision to the tribunal forthwith for compliance. 83. Before parting with we would like to place our appreciation of the very spirited and valuable services rendered by Sri Naresh Thacker, ably assisted by Sri Ajay J n, learned counsel for the respondent-assessee and appreciate their objective and fair manner of making submissions at the Bar.