Suraj Impex (India) Pvt. Ltd. Vs Union of India & Ors. (Supreme Court of India)
Appellant, M/s Suraj Impex (India) Pvt. Ltd., primarily engaged in the operations of export of Soyabean Meal, hence entitled to claim duty drawbacks at All-Industry Rate (AIR) introduced by earlier notifications. The sole determination as to whether the Circular No. 35/2010-Cus. Dt. 17.09.2010 for the purposes of claim of custom duty drawbacks for merchant exporters, have retrospective or prospective effect. In the present case, if the Circular is held to be clarificatory, curative and declaratory in nature, its application would be retrospective and would entail the claim of the Appellant of custom duty drawbacks at 1% AIR payable & enforceable against the Respondents.
In the determination of the said question, it is apposite to give credence to the substance of the Circular and not merely its form as directed by Hon’ble SC in several decisions including Sree Sankaracharya University of Sanskrit & Ors. Vs Dr. Manu & Anr [2023] SCC Online SC 640., State of Bihar vs Ramesh Prasad Verma [2017] 5 SCC 665,Commissioner of Income Tax I, Ahmedabad vs Gold Coin Health Food (P) Ltd [2008] 9 SCC 622. On a careful examination of the CBEC Circular/Notification No. 35/2010-Cus. dt. 17.09.2010, the following aspects emerge undisputably:
(i) The Circular was issued pursuant to representations & references received by exporters who were being denied the 1% drawback of the customs portion, despite previous notifications clearly stating that the drawback was available irrespective of whether the exporter had availed CENVAT or not.
(ii) A combined reading of the Circular and the Notifications issued prior thereto, would show there is no express distinction in the benefit accrued to the SBM merchant exporters from day one to the date of issuance of circular.
(iii) The Circular does not vest any fresh rights on merchant exporters or casts upon any burden on the Department except the one already cast upon them vide previous Notifications.
Even otherwise, a threadbare analysis of the nature and substance of the CBEC Circular No. 35/2010-Cus. dt.17.09.2010, would firstly make it evident that there is no substantive modification and amendment to the previous CBEC Notifications. The language of the Circular does not expand or alter the scope of the previous Notifications, but cements the claim of the merchant exporters, who were entitled to receive the benefit of AIR customs duty drawback since 2007. The Circular dt. 17.09.2010 per se clarifies and makes it explicit that the customs duties which remained unrebated to the concerned manufacturers, should be provided through the AIR drawback route, with or without the rebate of Central Excise Duties at the time of processing in terms of Rule 18 or 19 of the Central Excise Rules, 2002.
