The central legal point established in the judgment is the entitlement of Export Oriented Units to claim duty drawback on bulk tea under the Customs Act and relevant notifications issued by the Director General of Foreign Trade.

JUDGMENT

Heard learned advocates appearing for the parties.

Relevant facts involve in brief according to the petitioner as appears in this writ petition are as hereunder.

Main issues which require adjudication in this writ petition are as follows:

(i) Whether on the facts and in the circumstances of the case impugned order of the revisional authority is erroneous both in law and in facts and in disregard to the Notification No. 39(RE-01)/1997-2002, New Delhi dated 22nd November, 2001 issued by the DGFT (Government of India, Ministry of Finance) by holding that the petitioner being 100% EOU could not claim duty Drawback on bulk tea in question procured by it from the bulk tea manufacturer and supplier which has admittedly paid the Excise Duty and that it is the supplier which is only entitled to claim duty Drawback and not the petitioner in spite of the fact that the said bulk tea manufacturer has not claimed the Duty Drawback on such deemed export which took place within the period from 01.06.2000 to 31.03.2001?

(ii) Whether revisional authority is justified in passing the impugned order allowing the revisional application of the respondents customs authority by setting aside the order of the appellate authority holding in favour of the petitioner, on a new ground which was neither the part of the show cause notice, nor the part of the adjudication order nor the same was the case of the customs authority before the appellate authority?

(iii) Whether submission of the respondents customs authority for the first time before this Court in course of hearing that petitioner’s representative’s concession on its statutory right of entitlement of such drawback in course of adjudication proceeding disentitles it to make such claim, is sustainable in law when nowhere this was the case or ground of the respondents customs authority either in the show cause notice or before the Appellate authority or before the revisional authority or even in its affidavit-in-opposition to the writ petition?

(iv) Whether on the facts and in the circumstances of the case impugned order of the revisional authority dated 20th December, 2019 allowing the revisional application of the respondents customs authority against the order of Commissioner of Customs (Appeals), Kolkata allowing the appeal of the petitioner by holding in its favour by setting aside the order-in-original raising the deemed of Rs.10,23,000/- towards Duty Drawback, on the ground that the same was erroneously allowed by the Appellate authority to the petitioner being 100% EOU, is legal and valid?

By this writ petition, petitioner has challenged the legality and/or validity of the impugned Order dated December 20, 2019 passed by the Revisional Authority (Respondent No. 2) relating to the petitioner’s drawback claims filed in respect of 22 shipping bills in question during the period from June, 2000 to August, 2000 setting aside order-in-appeal passed by the Commissioner of Customs (Appeals), Kolkata, which had held in favour of the appellant-writ petitioner by allowing the appeal of the petitioner.

Petitioner submits that petitioner is a 100% Export Oriented Unit (EOU), exported 22 consignments of tea during the period from June 02, 2000 to August 26, 2000 and claimed duty drawback on Central Excise duty paid on purchases in question, under Section 75 of the Customs Act, 1962 (hereinafter referred to as the “Act”) read with the Customs, Central Excise Duties and Services Tax Drawback Rules, 1995 (hereinafter referred to as the “Rules”), Foreign Trade Policy and the relevant notifications issued by the Director General of Foreign Trade. Chapter 9 of the Foreign Trade Policy/Export and Import Policy governed the entitlement of EOUs like the writ petitioner to claim drawback at All Industry Rates (AIR).

Petitioner submits that on December 01, 1999, the DGFT issued Notification No. 36 (RE-99)/1997-2000 dated December 01, 1999 wherein sub-paragraph (c