TMI Blog2013 (10) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement of above said Circular dated 2-2-2009. Under such circumstances, Government finds that order of appellate authority is not proper and hence, not sustainable. However, Government notes that these certificates issued from authorized dealer were not before original authority - Matter remanded back - Decided in favour of appellant. - F. No. 371/13/DBK/2013-RA - 233/2013-Cus - Dated:- 7-10-2013 - Shri D.P. Singh, Joint Secretary Shri Ganesh K.S. Iyer, Shriram, Advocates and Bhide, Sr. Manager, for the Assessee. Ms. Jyoti Agarwal, Assistant Commissioner and Shri C.H. Satem, Superintendent, for the Department. ORDER This revision application is filed by applicant M/s. Alfal Laval (India) Ltd., Pune against the Order-in-Appeal No. 439/M-III/2012-Air, dated 7-11-2012 passed by the Commissioner of Customs (Appeals), Mumbai-400099 with respect to Order-in-Original dated 12-7-2010 passed by Asstt. Commissioner of Customs, DBK/XOS, Air Cargo, Mumbai. 2. Brief facts of the case are that M/s. Alfal Laval (India) Ltd., Mumbai had obtained drawback of ₹ 1,21,93,215/- for the exports made vide various shipping bills. A demand-cum-show cause notice issued al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as envisaged in the circular referred herein above by stating that the documents were not made available to the original authority. The applicant submit that the stand of the appellate authority for not considering the submission made of the certificates obtained from authorized dealer is not correct in view of the principles laid down by the Hon ble High Court in the case of Indian Oil Corporation Ltd. v. Union of India reported in 2012 (280) E.L.T. 507 (Guj.). In the case of Mangalore Chemicals Fertilizers Ltd. v. Deputy Commissioner reported in 1991 (55) E.L.T. 437 (S.C.). 4.4 In case of Drawback/rebate it is now a title law that the procedural infraction of Notifications, circulars, etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses. In this aspect, the applicant has relied upon judgment of Revisionary Authority, in the case of Leighton Contractors (India) Pvt. Ltd. reported in 2011 (267) E.L.T. 422 (G.O.I.). 5. Personal hearing was scheduled in this case on 7-8-2013 at Mumbai. Shri Ganesh K.S. Iyer, Advocates and Shri Shriram, and Mr. Bhide, Sr. Manager attended hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/Deputy Commissioner of Customs shall issue a notice to the exporter for production of evidence of realization of export proceeds, failing which an order shall be passed to recover the amount of drawback paid to the claimant. 8.1 The applicants were issued show cause notice dated 30-4-2010, the relevant portion of which has been reproduced below :- The exporter has not furnished the proof of realisation of Foreign Exchange exported under said Shipping Bills in terms of C.B.E. C. Circular No. 5/2009-Cus., dated 2-2-2009 and Public Notice No. 5/2009, dated 7-3-2009. As the exporter has not realized the sale proceeds (Foreign Exchange), therefore the said drawback amount is liable to be returned along with applicable interest to the customs department as per Rule 16A sub-rules (1) (2) of Customs, Central Excise and Service Tax Drawback Rules, 1995. The exporter exported goods under the shipping bills mentioned in the annexure attached to this notice. Further, the exporter was sanctioned with drawback as mentioned above under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. As per Rule 16A sub-rules (1) (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5. In the light of decisions taken by the Board, the Directorate General of Systems has developed a BRC (Bank Realization Certificate) Software for ICES, the salient features of which are the following :- (a) The exporters filing Shipping Bills (S/Bs) under drawback shall furnish a declaration to the Assistant Commissioner/Deputy Commissioner (Drawback) providing the details of all Authorized Dealers (AD), their codes and addresses through whom they intend to realize the export proceeds. Such a declaration shall be filed at each port of export through which the exporter exports his goods. In case, there is a new addition of AD, the same is to be intimated to the concerned Custom House at the port of export. (b) The system would generate on all Drawback Shipping Bills, the due date for submission of BRCs. (c) The exporter shall submit a certificate from the Authorized Dealer(s) in respect of whom declaration has been filed containing details of the shipments which remain outstanding beyond the prescribed time limit, including the extended time, if any, allowed by AD/RBI. Such a certificate can also be provided by a Chartered Accountant in his capacity as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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