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2016 (11) TMI 854 - HC - CustomsAcceptance of Bank Realization Certificate (BRC) as proof of export and realization of export proceeds of the shipment - duty drawback - the claim of the respondent that drawback be recovered by the petitioner, as the petitioner failed to produce evidences for having realized the sale proceeds in foreign exchange exports made within the stipulated period of six months in the form of BRC, justified? - whether the dismissal of the petitioner's appeal as not maintainable by the Commissioner (Appeals) would disentitle the petitioner to the relief sought for? - Held that: - on perusal of the order passed by the Commissioner (Appeals) it is seen that the appeal filed by the petitioner was rejected as time barred. If that is so, the findings rendered by the Commissioner (Appeals) in paragraph 8.3 commenting upon the non-submission/belated submission of the BRC should be held to be without jurisdiction since the Commissioner (Appeals) could not have rendered the findings on merits when the appeal itself is held to be not maintainable. Therefore, the findings rendered in paragraph 8.3 of the order passed by the Commissioner (Appeals) has to be necessarily eschewed. So the first question is decided in favour of the petitioner. Whether the Department could refuse to consider the petitioner's case when admittedly the Original Authority did not examined as to whether the BRC were submitted within the time permitted? - Held that: - since the petitioner failed to respond to the notices issued by the authorities on 07.11.2006 and 15.06.2007, the Original Authority proceeded exparte and concluded that the petitioner has not produced the BRC. Therefore, they have to pay a sum of ₹ 20,69,545/- which they have availed as duty drawback. Thus, it is clear that at no point of time, the petitioner's case was adjudicated by the authority to ascertain as to whether the BRC produced by the petitioner along with their letters dated 23.11.2006 and 27.07.2007 to the Assistant Commissioner, ICD, Tirupur merits consideration. Therefore, merely because the Original Authority has decided exparte cannot operate as estoppel and the Department cannot refuse to consider the factual position, especially when the petitioner has prima facie established before this Court that they have produced the BRC before the concerned authority at Tirupur. Therefore, de hors the finding rendered by the Commissioner (Appeal) as well as the respondent, the petitioner's request for considering their drawback claim should be independently adjudicated by the authority. Petition disposed off - matter on remand to adjudicate the correctness of the claim made by the petitioner pursuant to their letters dated 23.11.2006 and 27.07.2007 and after issuing show cause notice to the petitioner, the proceedings shall be finalized on merits and in accordance with law.
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