We refer to DGFT Public Notice no. 4 dated 23rd August 2010, prescribing Annexure III to ANF-8 as the format for a disclaimer certificate. The format asks manufacturer-suppliers to declare that they have not taken the Cenvat facility. To me it appears wrong because the manufacturer-supplier will indeed take Cenvat on his inputs. What is available as deemed export benefit is TED refund, and drawback of customs duty portion (or of the excise duty in case Cenvat is not available). Can you see if there is some other interpretation, or if it has been wrongly drafted by DGFT?
In my opinion, the said Annexure-III is drafted wrongly. Besides what you have pointed out, it asks for another declaration for drawback claim that advance authorisation facility has not been taken, completely ignoring the position that drawback of duty paid on some inputs and duty exemption for some other inputs can always be claimed against the same supplies. Even the wording in the said Annexure-III is imprecise and amateurish. For example, it mentions ‘rebate of raw materials’ instead of stating ‘rebate of duty paid on raw materials’. A large number of deemed exporters are affected by such faulty drafting. I hope the DGFT will get this disclaimer certificate format suitably redrafted.
We have just enough exports to get recognition as an export house, but if we exclude the amounts outstanding for payment, we fall short. Is the recognition granted on the basis of export performance or actual realisation?
As per Para 3.10.2 of the Foreign Trade Policy (FTP), ‘applicant shall be categorised depending on his total FOB (FOR for deemed exports) export performance during current plus previous three years (taken together)’. Therefore, as far as the Policy is concerned, the dispensation is to grant recognition on the basis of export performance. However, in the application form ANF 3A for grant of status certificate, you are required to declare that ‘only such exports has been taken into account for seeking recognition, which has been realised by me in our bank account directly from overseas’. Your Chartered Accountant is also required to certify that ‘it has been ensured that in respect of export of goods, a shipment can (sic) counted in applicant’s export turnover /performance only if the realisation of export proceeds from overseas is in the applicant’s bank’. Thus, the procedures bar you from counting the exports for which payment is not yet realised.
Is there any time limit for return of our pre-deposit after we have won the case at the Tribunal?
The CBEC Circular no. 802/35/2004-CX., dated 8-12-2004, says that pre-deposit must be returned within three months from the date of the order passed by the Appellate Tribunal/Court or other Final Authority unless there is a stay on the order of the Final Authority/CESTAT/Court, by a superior Court and that delay beyond three will be viewed adversely and appropriate disciplinary action will be initiated against the concerned officers.