TMI Blog2012 (11) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned Rule 16A(2) of the Customs, Central Excise [Duties] & Service Tax Drawback Rules, 1995 is legal & proper - F. No. 380/18/DBK/2010-RA-Cus - 329/2011-Cus - Dated:- 28-10-2011 - Shri D.P. Singh, J. [Order]. This Revision Application has been filed by Commissioner of Customs, Customs House, 15/1 Strand Road, Kolkata against Order-in-Appeal No. KOL/Cus/CKP/23/10, dated 27-1-2010 passed by the Commissioner of Customs (Appeals), Customs House, Kolkatta. M/s. Schefields International Pvt. Ltd., Kolkatta are the Respondents in this case. 2. Brief facts of the case are that M/s. Schefields International Pvt. Ltd. had exported pens Vide Shipping Bill No. 5278102 dated 28-12-2005 for which they received Drawback of duty. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The jurisdictional Commissioner of Customs found the above Order-in-Appeal as not legal proper and reviewed the same under Section 129DD(1A) of Customs Act, 1962, and filed this Revision Application before the Central Government on the following grounds :- 4.1 Drawback is paid under Section 75 of the Customs Act, 1962 and any drawback sanctioned earlier but found later to be paid erroneously or to be in excess can be realized as per Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. Rule 16A of the same Rules lays out further that if the amount of export proceeds have not been realized then the Drawback amount sanctioned earlier on this count has to be realized. Para (2) of Rule 16A states that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Accountant in order to enable the bank to delete the Shipping Bills from the list. 4.3 Commissioner (Appeals) has expressed at one place of the impugned Order-in-Appeal that payment through ECGC had been clarified in paras 2.25.1 and 2.25.2 of the Handbook of Procedures. The Handbook of procedure has simply said at para 2.25.1 that payment through ECGC cover would count for benefits under FTP . However, Drawback is not a scheme coming within the purview of the Foreign Trade Policy (FTP) read with the Foreign Trade (Development Regulation) Act, 1992 but is a provision that is circumscribed within the Customs Act, 1962 and thus is outside the purview of the aforesaid para mentioned of the Handbook of Procedure. The para 2.25.2 rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same without any complain in that case export was completed and the Respondent was entitled to get Drawback, as export benefit, when payment was realized. 5.4 That the latest Circular issued by RBI vide Master Circular No. 06/2010, dated 1-7-2010 (according to para C22 of the Circular) clarified that if the export process settled through payment of claims by ECGC surrender of incentives, if any, in such cases it will be decided as provided in the Foreign Trade Policy (FTP). According to the FTP (Handbook of Procedures) Para 2.25 it is clarified that payment through ECGC cover would count for benefits under FTP . Hence in Para (ii) of Grounds of Appeal where Assistant Commissioner (Drawback) mentioned that Drawback is not scheme coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not being realized and the Respondent party only got the reimbursement from the Export Credit and Guarantee Corporation. The lower authorities demanded the sanctioned Drawback by way of Show Cause-cum-Demand notice dated 28-1-2008. The lower authorities confirmed the demand under Rule 16A(2) of the Custom and Central Excise Duties Drawback Rules, 1995. 8. Government further notes that the basic dispute herein is that while the applicant department does not find the above reimbursement by ECGC as equivalent to realization of due sale proceeds in foreign exchange, the Respondent exporting party term the same as proper payment realized on account of export under various export promotion scheme including Drawback. 9. Before proceeding f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs shall pass an order to recover the amount of drawback paid to the claimant and the exporter shall repay the amount so demanded within thirty days of the receipt of the said order : .. .. 10. Rule 16A(1) of above said rules, clearly stipulates that where Drawback has been paid but the sale proceeds have not been realized in respect of such exports with stipulated time period, such Drawback is to be recovered in terms of sub-rule (2). Government now notes that in para 6 of the above Order-in-Appeal the Commissioner (Appeals) had held that the export proceeds received from ECGC as clarified in para 2.25.1 and 2.25.2 of the Handbook of Procedure of the relevant Foreign Trade policy period are to be trea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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