Table of Contents Contents Table of Contents1 Introduction2 Part I The Duty Drawback Scheme3 The Customs Act 19623 Part II Pros and Cons of the Scheme7 Pros7 Cons8 Part III Case Law8 Conclusion10 Bibliography12 Introduction With the primary objective of incentivizing exports, various schemes like Export Oriented Units (EOUs), Special Economic Zones (SEZs), Duty Exemption Entitlement Schemes (DEECs), Manufacture under Bond etc. have been made available by the government to obtain inputs without the payment of customs duty/excise duty or to obtain refund of duty paid on inputs.
In case of central excise, manufacturers can avail Cenvat Credit of duty paid on inputs and utilize the same for payment of duty on other goods sold in India, or they can obtain refund. Schemes like manufacture under bond are also available for customs. On similar lines, manufacturers or processors can also avail of Duty Drawback Schemes. Here, the excise duty and customs duty paid on inputs is refunded to the exporter of finished product by way of ‘Duty Drawback’. Section 75 of Customs Act provides for drawback on materials used in manufacture or processing of export product.
Under Duty Drawback Schemes, relief of customs and central excise duties suffered on the inputs used in the manufacture of export product is allowed to exporters. The admissible duty drawback amount is paid to exporters by depositing it into their nominated bank account. It may be noted that duty drawback under section 75 is granted when imported materials are used in the manufacture of goods which are then exported, while duty drawback under section 74 is applicable when imported goods are re-exported as it is and the article is easily identifiable. Section 37 of Central Excise Act allows he Central Government to frame rules for purpose of the Act. In exercise of these powers, The Customs and Central Excise Duties Drawback Rules, 1995 have been framed outlining the procedure to be followed for the purpose of grant of duty drawback by the Customs Authorities processing export documentation. In order to fulfill the objectives of this paper, the paper has been structures as follows. First, I have analysed the rationale behind a duty drawback scheme. Second, I have delved into the statutory provisions dealing with duty drawback schemes and relevant rules.
Third, I have made a comparison of the pros and the cons of a duty drawback scheme and finally, I have observed certain principles that have been laid down through case law before making my concluding remarks. Part I The Duty Drawback Scheme Duty drawback schemes, which typically involve a combination of duty rebates and exemptions, are a feature of many countries’ trade regimes. They are used in highly protected, developing economies as means of providing exporters with imported inputs at world prices, and thus increasing their competitiveness, while maintaining the protection on the rest of the economy.
An important principle in the levy of customs duty is that the goods should be consumed within the country of importation. If the goods are not so consumed, but are exported out of the country, the cost of export goods gets unduly escalated an account of incidence of customs duty. Therefore to avoid this escalation of price duty drawback schemes seek to remove the impact of customs duty on imported goods which are eventually exported. Eventual exportation may happen due to: A. Goods are sent back to a foreign country Due to non conformity with required specifications * Trade-restrictions in the country of import * Primary purpose of import was temporary retention B. Goods are used in the manufacture of other products meant for export The latest cause for relief of import duty paid is when the goods are ultimately exported. This factor gained greater importance with the establishment of 100% Export Oriented Units where goods manufactured are mainly exported to earn foreign exchange. The Customs Act 1962
Chapter X of the Customs Act, 1962 deals with various aspects of the duty drawback scheme in India. Section 74 deals with goods which fall under Category A as described above and Section 75 deals with Category B. In case of goods which were earlier imported on payment of duty and are later sought to be re-exported within a specified period, customs duty paid at the time of import of the goods with certain cut can be claimed as duty drawback by the exporter at the time of export of such goods.
Such duty drawback is granted in terms of Section 74 of the Customs Act, 1962 read with Re-export of Imported Goods (Drawback of Customs Duty) Rules, 1995. For this purpose, at the time of import, the identity particulars of the goods are recorded at the time of examination of import goods; at the time of export, cross verification of the goods under export is done with the help of related import documents to ascertain whether the goods under export are the very ones which were imported earlier.
Where the goods are not put into use after import, 98% of duty drawback is admissible at the maximum under Section 74 of the Customs Act, 1962. In cases where the goods are put into use in India after import but prior to its export, duty drawback is granted on a sliding scale basis depending upon the extent of use of the goods. No duty drawback is available if the goods are put into use for a period exceeding 36 months after import. Application for duty drawback is required to be made within 3 months from the date of export of goods.
If the primary elements of Section 74 as highlighted in the relevant footnote are satisfied, then the export goods are entitled to a payment of drawback of an amount equal to 98%. However, there are certain external factors which can affect the relevant conditions. As a corollary to this proposition, it would follow that the rate fixed by the Government would be applicable for a prescribed period only. If there is a) any variation in the rate of duty paid on the input whether customs or excise duty b) variation in the composition of the final product and c) change in the process of manufacture the rate of duty already fixed by the Government would not be applicable. It would require to be revised. The fixation of a rate of drawback is, therefore a continuous process and the industry availing of such facility of drawback is required to furnish continuously its costing and production data to the organization entrusted with the responsibility of fixation of rates of drawback. It will be noticed that in the case of drawback under section 74 the amount of drawback was related to the actual duty paid on the goods.
It did not have any correlation to either the valuation of the goods at the time of exportation or the prevailing rates of duty on the goods at the time of export. However, in the case of section 75 drawbacks, since the identity of the inputs which have suffered customs or excise duty as the case may be, is extinguished in the final product, there has been a necessity to correlate the grant of drawback with the value of the goods exported.
It has therefore been prescribed under proviso to section 75(1) of the Customs Act that no drawback of duty shall be allowed under this section if: * the export value of the finished goods or the class of goods is less than the value of the imported material used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods: or * the export value is not more than such percentage of the value of the imported materials used in 1he manufacture or processing of such goods or carrying out any operation on such goods or class of goods as may be notified by the Central Government; or * any drawback has been allowed on any goods and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the Foreign Exchange Management Act, 1999 (FEMA). In such a case, the drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2) specify the procedure for the recovery or adjustment of the amount of such drawback. Under Duty Drawback Scheme, an exporter can opt for either a) All Industry Rate (AIR) of Duty Drawback Scheme or b) Brand Rate of Duty Drawback Scheme
Major portion of Duty Drawback is paid through AIR Duty Drawback Scheme which essentially attempts to compensate exporters of various export commodities for average incidence of Customs and Central Excise duties suffered on the inputs used in their manufacture. Brand rate of duty drawback is granted in terms of the Customs and Central Excise Duties Drawback Rules, 1995 in cases where the export product does not have any AIR or duty drawback rate, or where the AIR duty drawback rate notified is considered by the exporter insufficient to compensate for the Customs/Central Excise duties suffered on inputs used in the manufacture of export products.
For goods having an AIR the brand rate facility to particular exporters is available only if it is established that the compensation by AIR is less than 80% of the actual duties suffered in the manufacture of the export goods. Part II Pros and Cons of the Scheme Pros The principal method of encouraging the export of goods has been the drawback of customs and the central excise duties on goods manufactured out of customs duty paid and/or central excise duty paid on inputs or raw materials. The Duty drawback schemes are used in highly protected economies as means to provide exporters of manufactured goods with imported inputs at world prices and thus increasing their profitability, while maintaining the protection for domestic industries that compete with imports.
The choice of export drawbacks is reinforced by international regulations, namely that GATT rules out the use of direct export subsidies, but allows the use of drawbacks. If export was not there, there would be no manufacture of the goods now being manufactured. So there would be no duty collected also. Duty exemptions increase the competitiveness and efficiency of the economy. In the absence of duty drawbacks the protection of import competing firms is in general positive, while that of export competing firms is negative. This is because export competing firms face world prices while domestic competing firms are protected by tariffs on final goods.
Duty drawbacks reduce the Effective Rates of Protection (ERPs) for export competing firms to 0 which allows export producers to operate at world prices, and halve the standard deviation in ERPs, which in turn increases the efficiency of the economy. Cons * A duty drawback scheme is an obvious and direct loss of government revenue * Creates opportunity for cheating and abuse * Absorbs administrative resources for its implementation * Drawbacks do not offset non-tariff barriers against imported inputs The implementation of Duty Drawback Programs in developing countries has not fared very well for various reasons such as * administrative weaknesses in customs administration, * poor statistical infrastructure, failure of the government to reimburse pre-paid duties because of financial difficulties Part III Case Law It is important to bear in mind the distinction between Section 74 and Section 75. Section 74 of the Customs Act comes into operation when articles are imported and there upon exported, such articles being easily identifiable. Section 75 on the other hand comes into operation when imported materials are used in the manufacture of goods which are exported. The Government of Andhra Pradesh floated an international tender for the transportation of a monolithic Buddha statue. The statue was required to be transported from Raigir, Nalgonda District, to the foreshore of Hussain Sagar Lake, Hyderabad, where it was to be installed.
The transportation of this monolithic statue was a highly technical work and a special equipment for transportation as well as special lifting and erection equipment called Hydra-jack was required. This Hydra-jack was imported from a firm in Holland on hire. The equipment was imported on a customs clearance permit on an undertaking to export the equipment within a specified period. However, the job of installation of statue in the rock at the centre of the lake could not be completed as during transportation of the statue from the shore to the central rock, the statue sank in the lake. The Hydra-jack was therefore shipped back to the suppliers from whom it was hired.
A claim for drawback under section 74 of Customs Act was made claiming drawback of 98% of the total duty paid in respect of the goods. The Assistant Commissioner however allowed drawback only at the rate of 85% of the total import duty paid. The question that needed to be determined is whether the drawback is to be granted at 98% or 85% as has been allowed by the department. The Delhi High Court held that the reduction in the rate of drawback was applicable in case where the goods had been used after importation and this reduction was sanctified in accordance with a notification issued under section 74 prescribing the rates of drawback admissible in case of goods used in India before their re- export.
In deciding the matter, the court took a clear view that whether the jack in question was used or not is a question of fact. Since the statue did not reach the central rock where the statue had to be hoisted for installation, it is clear that the Hydra-jack could not be used in India. The Court held that in these circumstances, the drawback was admissible under section 74. In another famous case Commissioner of Customs Vs. India Steel Industries, it was held that rules of interpretation in tariff need not be extended to interpretation of classification under the Drawback Rules. In this case the contention was regarding schedule II to Customs and Central Excise Drawback Rules.
Two entries which were under the scanner were entry 3606 and entry 3803 The issue was whether the words “all types” occurring in the entry against 3606 referred to “steel bars” alone or qualified the next nomenclature of “shaftings”. In the Customs Tariff, a clear distinction is made between bars and shaftings. The department argued that in the commercial parlance, bars were not known to be made up of stainless steel and shaftings did not come under the same category as bars. It was therefore, argued by the department that shafting would appropriately fall under the description of articles made of stainless steel including stainless steel castings.
The Government of India held that the words “all types” did not refer to dimensional distinction alone but referred to the nature of the material used such as mild steel, carbon austenitic steel etc. It was further held that the rules of the interpretation of a tariff would not apply to rules of interpretation of the entries to the Schedule II to drawback rules, but they would have persuasive value. It was further held when two different descriptions or words are used, it would be necessary to give them the natural and separate meaning to make them meaningful. In LVT Products v. CC, it was held that there is no provision for refund of import duty, if imported goods are re-exported. The assessee can only claim duty drawback u/s 74. Conclusion
While in many countries duty drawbacks have not been implemented successfully, largely due to administrative weaknesses, in others these schemes have been very effective in opening up export-oriented sectors by overriding existing protection. In China, duty exemptions at the point of entry have been an essential part of the country’s export processing system and trade reform process. As far as India is concerned, on a theoretical analysis as shown above it is evident that duty drawback schemes are an effective mechanism to encourage exporters to exports goods to foreign countries. Moreover, it also acts as an effective safeguard in cases where the exporter has to send back goods due to extraneous circumstances. From the standpoint of the State-Exporter relationship it is like a reward that that state is giving to the exporter for his contribution towards the increase in export.
As pointed out earlier, if imported goods are not consumed, but are exported out of the country, the cost of export goods gets unduly escalated an account of incidence of customs duty. Therefore to avoid this escalation of price duty drawback schemes seek to remove the impact of customs duty on imported goods which are eventually exported. To conclude it can be said that keeping aside the administrative hiccups in making the implementation of duty drawback schemes effective, it would not be wrong to say that these schemes can and have shown tremendous potential to enhance exports. Bibliography BOOKS 1. B. Seyoum, Export-Import Theory, Practice, and Procedures (2nd Edn. , London: Routledge, 2009) 2. B. N.
Gururaj, Guide to Customs Act (1st edn. , Nagpur: Wadhwa Publications, 2003) 3. R. K. Jain, Central Customs Law Manual (43rd edn. , New Delhi: Centax Publications, 2011) 4. R. K. Jain, Central Excise Law Manual (53rd edn. , New Delhi: Centax Publications, 2011) ARTICLES 1. A. Panagariya, “Input tariffs, duty drawbacks, and tariff reforms”, 32(1-2) Journal of International Economics, 131-147 (1992). 2. E. Ianchovichina, “Trade policy analysis in the presence of duty drawbacks”, 26(3) Journal of Policy Modelling, 353-371 (2004). 3. R. Wade, “How to Protect Exports from Protection: Taiwan’s Duty Drawback Scheme”, 14(3) The World Economy, 299-309 (1991). 4. T. P.
Harrison, “Principles for the Strategic Design of Supply Chains”, 62(1) International Series in Operations Research ; Management Science, 3-12 (2004). 5. H. C. Oh and I. A. Karimi, “Global multiproduct production– Distribution planning with duty drawbacks”, 52(2) American Institute of Chemical Engineers Journal, 595-610 (2006). 6. M. Olarreaga, O. Cadot et al. , “Can Duty Drawbacks Have a Protectionist Bias? ” World Bank Policy Research Working Paper No. 2523 (2001). WEBSITES 1. www. indlaw. com 2. www. jstor. com 3. www. manupatra. com 4. www. taxindiaonline. com 5. www. web. worldbank. org ——————————————– [ 2 ].
The Institute of Chartered Accountants of India, Duty Drawbacks sourced from http://220. 227. 161. 86/18917sm_finalnew_idtl_customs_cp11. pdf (December 5, 2011). [ 3 ]. DRAWBACK scheme [ 4 ]. The rules govern the drawback in cases of export of imported goods as it is and also in cases where the goods imported are used as inputs for producing a final product which is ultimately exported. [ 5 ]. Sourced from, http://www. taxindiaonline. com/RC2/pdfdocs/cm/cm22a. pdf (December 5, 2011). [ 6 ]. E. Ianchovichina, “Trade policy analysis in the presence of duty drawbacks”, 26(3) Journal of Policy Modelling, 353-371 (2004) at 355. [ 7 ]. SECTION 74: Drawback allowable on re-export of duty-paid goods. 1) When any goods capable of being easily identified which have been imported into India and upon which [any duty has been paid on importation, – i. are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or ii. are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or iii. re entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if -] a. the goods are identified to the satisfaction of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] as the goods which were imported; and b. the goods are entered for export within two years from the date of payment of duty on the importation thereof : Provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit. 2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other relevant circumstances, may, by notification in the Official Gazette, fix. [(3) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may — a. provide for the manner in which the identity of goods imported in different consignments which are ordinarily stored together in bulk, may be established; b. specify the goods which shall be deemed to be not capable of being easily identified; and c. provide for the manner and the time within which a claim for payment of drawback is to be filed. ] (4) For the purposes of this section – a. oods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under section 16; b. in the case of goods assessed to duty provisionally under section 18, the date of payment of the provisional duty shall be deemed to be the date of payment of duty. [ 8 ]. SECTION 75: Drawback on imported materials used in the manufacture of goods which are exported (1) Where it appears to the Central Government that in respect of goods of any class or description [manufactured, processed or on which any operation has been carried out in India] [, being goods which have been entered for export and in respect of which an order permitting the clearance and loading hereof for exportation has been made under section 51 by the proper officer,] [or being goods entered for export by post under section 82 and in respect of which an order permitting clearance for exportation has been made by the proper officer], a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the [manufacture or processing of such goods or carrying out any operation on such goods], the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2). Provided that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported materials used in the [manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of the value of the imported materials used in the [manufacture or processing of such goods or carrying out any operation on such goods] or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf : Provided further that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the [Foreign Exchange Management Act, 1999 (42 of 1999)], such drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback. ] (1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods [manufactured, processed or on which any operation has been carried out in India] and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-section (1), be deemed to be imported material. ] (2) The Central Government may make rules for the purpose of carrying out the provisions of sub-section (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;] aa. for specifying the goods in respect of which no drawback shall be allowed; ab. 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]; b. for the production of such certificates, documents and other evidence in support of each claim of drawback as may be necessary; c. or requiring the [manufacturer or the person carrying on any process or other operation] to give access to every part of his manufactory to any officer of customs specially authorised in this behalf by the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] to enable such authorised 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. d. for the manner and the time within which the claim for payment of drawback may be filed;] [(3) The power to make rules conferred by sub-section (2) shall include the power to give drawback with retrospective effect from a date not earlier than the date of changes in the rates of duty on inputs used in the export goods. ] [ 9 ]. A. Panagariya, “Input tariffs, duty drawbacks, and tariff reforms”, 32(1) Journal of International Economics, 131-147 (1992) at 137. [ 10 ]. See Generally, Supra, note 8. [ 11 ]. Supra note1. [ 12 ].
Supra note 4. [ 13 ]. Rules 6 & 7, The Customs and Central Excise Duties Drawback Rules, 1995. [ 14 ]. Supra note 4. [ 15 ]. Sourced from, http://web. worldbank. org/WBSITE/EXTERNAL/TOPICS/TRADE/0,,contentMDK:20540524~pagePK:148956~piPK:216618~theSitePK:239071,00. html (December 12, 2011). [ 16 ]. Supra note 5, at 357. [ 17 ]. ABC India Ltd. v. UOI 1992(61) ELT 205 (Del HC). [ 18 ]. Supra note 1. [ 19 ]. All type of bright steel bars and shaftings Rs. 395/- PMT [ 20 ]. Articles made of stainless steel including stainless Rs . 890/- PMT steel castings, not otherwise specified, made of austenitic variety of stainless steel [ 21 ]. 1998(103) ELT 663 (CEGAT).