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2016 (2) TMI 320 - GOVERNMENT OF INDIA

2016 (2) TMI 320 - GOVERNMENT OF INDIA - 2015 (326) E.L.T. 411 (G. O. I.) - Recovery of duty drawback granted earlier due to non realization of foreign exchange - scope of sub-rule (5) of Rule 16A of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 introduced as per Notification No. 30/2011 - retrospective effect to be given or not - Held that:- as Rule 16(A)(5) of the Customs, Central Excise and Service Tax Drawback Rules, 1995, as amended, was made effective w.e.f. 11-4-2011 .....

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at the material time i.e. the period to which the impugned Shipping Bills belong and the period when the realization of export proceeds become due pertains to a period when the said RBI circulars and provisions of FTP 2009-14 were in force and Rule 16A(5) did not exist. The detailed findings of lower authorities regarding recovery of drawback amount in view of the said RBI circulars have also not been challenged by the applicant and Government finds that such findings of lower authorities and o .....

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ed 9-9-2014 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Tiruchirapalli with respect to Order-in-Original passed by the Assistant Commissioner of Customs (Drawback), Customs House, Tuticorin. 2. Brief facts of the case are that the applicant has exported goods for an amount of ₹ 64,33,993/- covered under Shipping Bills No. 1891278, dated 1-3-2008, 1889228, dated 27-2-2008 and 1879906, dated 8-2-2008 under the claim for Drawback. The applicant was .....

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vidences for realization of the sale proceeds for ₹ 64,33,993/-. After due process of law, the adjudicating authority demanded the ineligible drawback already availed by the applicant with applicable interest. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeal), 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 befo .....

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ation of India Ltd. under an insurance cover. (c) Reserve Bank of India writes off the sale proceeds on merits. (d) The Foreign Mission of India issues a certificate as to the non-recovery of sale proceeds from the buyer. The applicant has fulfilled all the above vide Para 3(c) at Page 2 of the Order-in- Original. The Commissioner Appeals has therefore erred in ordering recovery of the drawback amount. 4.2 The applicant submits that the Assistant Commissioner has relied on pre-amended Rule .....

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ch are beneficial to the assessee can have retrospective effect. In the case of CCE v. Mysore Electrical Industries [2006 (204) E.L.T. 517 (S.C.)] the issue was whether the ruling under Rule 37B of the Central Excise Act issued by the Board re-classifying the Single Panel Circuit Breakers under CTH 85.37 as against the previously approved. The applicant submits that the rationale of the said judgment has to be applied not only to Board s ruling under Section 37B of the Central Excise Act or Circ .....

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47 (H.P.). The above said judgment was also relied by the Madras High Court in the case of Karvembu & Co. v. U.S. Dept. of Revenue [2010 (20) S.T.R. 591 (Mad.)]. 4.5 It is submitted that it is a settled law that in procedural matters, the law prevailing on the date of issue of show cause notice has to be taken into consideration. It is further submitted that the Hon ble Supreme Court in the case of Rochiram & Sons v. Union of India reported in 2008 (226) E.L.T. 20 (S.C.) has held th .....

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of Uttam Steel Ltd. v. Union of India [2003 (158) E.L.T. 274 (Bom.)] has held that any amendment in procedural law shall have retrospective effect even if it is not specifically mentioned that the amendments has retrospective effect. 4.6 It is submitted that it will be invidious distinction, if the exporter who filed shipping bill on 10-4-2011 asked to shell out the drawback amount while the one who made it on 11-4-2011 avails the benefit. 4.7 It is submitted that the demand notice wa .....

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0 (S.C.)] thuse : once the rule comes into existence and jurisdiction under the rule is involved, it has got to cover a period upto five years prevailing the date of issue of notice . In other words, the law as it prevailed on the date of issue of notice will prevail. 5. Personal hearing was scheduled in this case on 25-3-2015. Shri Derrick Sam, Advocate attended hearing on behalf of the applicant. Nobody attended the hearing on behalf of the department. The Department vide their written su .....

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s read with proviso to Section 75(1) of the Customs Act, 1962 on the ground that the applicant failed to realize sale proceeds in respect of impugned exports. Commissioner (Appeals) upheld impugned Order-in-Original. Now, the applicant has filed this Revision Application on grounds mentioned in Para (4) above. 8. Government notes that the applicant has contended that though they failed to realize foreign remittance, their loss was compensated by Export Credit Guarantee Corporation (ECGC) an .....

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e only for exports made after 11-4-2011 and not before that and as such, exports made by the applicant during period of February/March, 2008 are not eligible for benefit under above said provision. In view of rival contentions, Government now proceeds to examine various statutory provisions relating to this case. 8.1 The applicant has placed heavy reliance on sub-rule (5) of the Rules 16A of the said Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, which was introduced v .....

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n 75 of the Customs Act, 1962 (52 of 1962), section 37 of the Central Excise Act, 1944 (1 of 1944) and section 93A read with section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, namely : - 1. (1) These rules may be called the Customs, Central Excise Duties and Service Tax Drawback (Second Amendment) Rules, 2011. (2) hey shall come into force on .....

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e Foreign Exchange Management Act, 1999 (42 of 1999), but such non-realisation of sale proceeds is compensated by the Export Credit Guarantee Corporation of India Ltd. under an insurance cover and the Reserve Bank of India writes off the requirement of realisation of sale proceeds on merits and the exporter produces a certificate from the concerned Foreign Mission of India about the fact of non-recovery of sale proceeds from the buyer, the amount of drawback paid to the exporter or the claimant .....

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umber 9/2011-Customs (N. T.), dated the 10th February, 2011 vide number G.S.R. 80(E), dated the 10th February, 2011. The important aspects of the said Notification No. 30/2011, dated 11-4-2011, by which said sub-rule (5) of Rule 16A was introduced are as follows : (a) Vide Clause 1(2) of the said Notification, the above said amendment comes into force on the date of their publication in the official Gazette i.e. only from 11-4-2011; (b) The benefit under sub-rule (5) of the Rule 16(1) of the sai .....

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entioned in part (a) above, the amended Rules came into effect only from 11-4-20011, whereas, the impugned exports pertain to year February/March, 2008. As such, the provision of sub-rule (5) of Rule 16(A), which came into effect only from 11-4-2011 cannot be extended to exports of 2008 for which export remittances had to be realized within 12 months from the date of export. Any action for recovery will be governed by the provisions of law as it existed as soon as the amount became due. There is .....

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(Bom.)] in particular in favour of their contention on this aspect. Government notes that facts of the case of M/s. Uttam Steel Ltd. are different as it pertains to changes in procedure of an already existing law viz. change in time limit prescribed within already existing Section 11B of Central Excise Act, 1944. In the present case, an absolutely new Rule has been introduced and the date from when it will become effective, is also specified in the notification. Therefore, the ratio of said jud .....

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