Although the Customs Tariff Act, 1975 and the Anti Dumping Rules, 1995 do not lay down any provisions allowing drawback of Anti Dumping duty, the Circular No. 106/95-Cus dated 11.10.1995 issued by the Government of India, Ministry of Finance (Department of Revenue) permits drawback of such duty to the exporters. This circular has clarified that Anti-Dumping Duty which is leviable under Section 9A of the Customs Tariff Act read with Section 12 of the Customs Act, is rebatable as Drawback in terms of Section 75 of the Customs Act. Since Anti-Dumping Duty is not taken into consideration while fixing All-Industry rate of Drawback, the drawback of such Anti-Dumping Duty can only be claimed under an application for Brand Rate under Rule 6 or Rule 7 of the Customs and Central Excises Duties Drawback Rules, 1995. This would necessarily mean that drawback shall be admissible only where the inputs which suffered Anti-Dumping Duty were actually used in the goods exported as confirmed by the verification conducted for fixation of Brand Rate. Where imported goods subject to anti-dumping duties were exported out of the country as such, then the Drawback payable under Section 74 would also include the incidence of Anti-Dumping duties as part of total duties paid.
The Circular No. 11/2005-Cus dated 03.0.-2005 issued by the Central Board of Excise & Customs, New Delhi on the issue of factoring of 2% Education Cess in Brand Rates and Special Brand Rates of Duty Drawback determined under Rule 6 and Rule 7 of the Customs & Central Excise Duties Drawback Rules, 1995, has clarified that the Education Cess imposed in the Budget, 2004-2005 is leviable @ 2% of the aggregate duties of customs (except safeguard duty under Sections 8B and 8C, countervailing duty under Section 9 and anti-dumping duty under Section 9A of the Customs Tariff Act, 1975) on all items imported into India. As Education Cess is being collected as duties of excise/customs, the element of Education Cess has been factored in All Industry Rates of Duty Drawback which were notified under Notification No. 8/2005-Customs (N.T.), dated 18-1-2005. The Ministry has also issued a Circular (No. 3/2005-Cus., dated 18-1-2005) [2005 (179) E.L.T. T31] clarifying the said position. In view of this, it has been decided that the element of Education Cess needs to be factored in the Brand Rates and Special Brand Rates of duty drawback determined under Rule 6 and Rule 7 of the Customs & Central Excise Duties Drawback Rules, 1995.