TMI Blog2013 (7) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty is also rightly imposed on the applicant. Limitation of time barred – assessee’s contention of notice being time barred was also not sustained – revision application decided against assessee. - 375/40/DBK/2011-RA - 243/2012-Cus - Dated:- 11-6-2012 - Shri D.P. Singh, J. Shri R.P. Jindal, Consultant and Abhishek Pareek, Advocate, for the Appellant. None, Advocate, for the Respondent. ORDER This revision application is filed by applicant M/s. AKS Apparels, New Delhi against the Order-in-Appeal No. CC(A) Cus/EXP/36/2011, dated 17-2-2011 passed by the Commissioner of Customs (Appeals), New Delhi with respect to Order-in-Original dated 15-6-2010 passed by the Additional Commissioner of Customs Export, Air Cargo E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, ordered for recovery of the Drawback amounting to Rs. 4,00,801/- availed by the Applicant under Rules 16 and 16A of Customs and Central Excise Duty Drawback Rules, 1995 read with provision of Section 75(1) of the Customs Act, 1962 along with interest on such Drawback and imposed penalty of Rs. 50,000/- under Section 114 of the Customs Act, 1962. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this revision application under Section 129DD of Customs Act, 1962 before Central Government mainly on the following grounds : 4.1 It is crystal clear from Board Circular No. 16/2009 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 75(1) of the Act ibid are not applicable in the instant case and disallowing the Drawback is beyond the scope of Show Cause Notice as well as section ibid. 4.4 As per the provisions of law the Applicant has not done any illegal act which consists of any mala fide intention or act of Applicant, therefore Applicant is not liable to pay any sort of penalty as there is no fault of the Applicant. Hence the penalty imposed on the Applicant may be set aside. 4.5 The subject Show Cause Notice is hit by the Limitation clause as the demand being time barred under Section 28(1)(b) of the Customs Act, 1962. The subject Show Cause Notice is issued after a lapse of almost three years. Proviso to section ibid provides that the period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is observed by the original authority that applicant being merchant exporter can be extended benefit of All Industry Rate (AIR) restricted to the custom allocation only in terms of C.B.E. C. Circular No. 64/2001-Cus., dated 19-11-2001, which stipulates that if the merchant exporter has procured the goods from open market, the goods shall be treated as having availed the modvat facility and thus are not entitled for Central Excise allocation of AIR of Drawback. 9. The applicant has relied upon C.B.E. C. Circular No. 16/2009-Cus., dated 25-5-2009. Perusal of para (5) above makes it dear that goods procured from merchant exporter from open market are deemed to be duty paid goods as, they bear burden of Central Excise Duty, which needs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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