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2016 (4) TMI 406 - AT - CustomsDisallowance of drawback claim - Exporter of bicycle parts to Iran, Tehran and Egypt - Jurisdiction - Whether DRI officer is a proper officer to issue show cause notice - recovery of erroneously granted excess draw back in terms of Rule 16 - Held that:- as per circular, show cause notices are required to be issued in terms of provisions of Rule 16 of the Customs, Central Excise Duties and Service Tax Draw back Rules, 1995 within the monetary limit laid down in the said circular, before any recovery can be initiated. As such, though there is lacuna in the said Rule 16 inasmuch as the same does not specifically provide for issuance of show cause notice and only refers to the demand made by the proper officer, but the said demand has to be made by the Proper Officer by way of issuance of show cause notice, as per the understanding of the Board also in the relevant portion of the Circular No. 24/11-Cus. By applying the ratio of law, declared by the Hon'ble Supreme Court in the case of Commissioner of Customs vs. Syed Ali [2011 (2) TMI 5 - Supreme Court] and subsequently followed by various other High Court, it has to be held that DRI officer was not the proper officer for issuance of show cause notice for the purpose of demand of allegedly erroneously granted excess draw back. Therefore, the show cause notice having been issued by ADG, DRI Delhi, is without jurisdiction and consequently the impugned order become void ab initio and cannot be upheld. The same is liable to be set aside on the ground of jurisdiction itself. Merits - Mis-declaration of goods - Value of goods as also port of discharge are contrary to even the procedure adopted by the Customs authorities - As per report of Consulate General of India at Dubai, only small fraction of iron was auctioned by Dubai DHS 31000 equivalent to ₹ 3,10,000/- - Revenue alleged that goods are overvalued as the goods have been examined at the end of supplier also, therefore, it cannot be alleged that goods were undervalued in the absence of contemporaneous price for the purpose of like kind of goods. Held that:- It was also found that out of 3 merchants/financiers only one company was not found at the address. Further it is found that the Revenue is heavily relied on the statement of Shri Navdeep Goyal representative of shipping agency but he was not made available for cross examination. Therefore, the said statement cannot be relied on. During the course of investigation, it was found that the appellant exported bicycles parts which were procured from various suppliers who processed the bicycles parts. There is no single evidence on record to show that the appellant has manufactured/ used sub-standard raw materials and all the suppliers have admitted that they have provided goods to the appellants. The appellant is a regular supplier/exported various other consignments of bicycles parts of similar nature. No departmental officers were alleged that having conspiracy with the appellants and there is verification report is on record. Therefore, in the absence of any supportive evidence except the report from the Consulate General of India at Dubai which is also not conclusive. In the absence of any such supportive evidence, it cannot be alleged that the appellant has availed excess drawback claim erroneously. Therefore, the demand is set aside on merits. - Decided in favour of appellant with consequential relief
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