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M/s Indian Apparels Versus Commissioner of Customs, Coimbatore

2016 (6) TMI 68 - GOVERNMENT OF INDIA

Demand of ineligible duty drawback with interest and imposition of penalty - Section 117 of the Customs Act, 1962 - Applicant were initially granted drawback for exports made by him - Sale proceeds realized beyond the stipulated period - Applicant claimed that sale proceeds were received by their bank within stipulated period and they have submitted the copies of Bank Realization Certificates (BRCs) in reply to impugned SCN but the same were not taken into consideration.

Held that:- .....

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ceipt which they admittedly failed to do. However, in the interest of justice, the applicant will submit these BRCs in original along with evidence that these were indeed submitted in response to the Show Cause Notice to enable verification of the same to the satisfaction of the original authority within 4 weeks of the receipt of this Order before the original Adjudicating Authority for consideration in accordance with provisions of law and passing suitable orders. The penalty in terms of Sectio .....

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d to as applicant) against the Order-in-appeal No. CMB-CEX-OOO-APP-081/2014 dated 08.07.14 passed by the Commissioner of Customs (Appeals), Coimbatore with respect to Order-in-Original sl. No 69/2014 dated 20.01.2014 passed by the Assistant Commissioner of Customs, Coimbatore. 2. Brief of the case are that the applicants have been sanctioned and paid Drawback amount of ₹ 1,47,445/- in respect of the drawback claims, Subsequently, it has been observed that the export proceeds have not been .....

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porter in India within the period allowed, under the Foreign Exchange Management Act, 1999 including any extension of such period, such drawback shall be recovered in the manner specified under Rule 16A(2) of Customs and Central Excise Duties and Service Tax Drawback rules, 1995. Since the applicant could not produce the relevant Bank Realization Certificates for the export of the said goods, the adjudicating authority demanded the ineligible duty drawback of ₹ 1,47,445/- with interest and .....

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on, under section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1 We submit that all the export proceeds related to the shipping bill for which the order in original was issued have been realized by us. There is no export proceeds pending for realization in our company. 4.2 We have also rightly replied along with the Bank realization Certificates (BRCs) to the impugned show Cause Notice, by means of a registered post on 04.07.2011. Having not recorded the prod .....

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SCN issued in the month of May 2011 along with the relevant BRCS in proof of realization of export proceeds for the relevant exports effected under the above referred Shipping Bills. The applicant could not attend the Customs Office and submit relevant documents on the date of hearing as he was not in knowledge of the same. The applicant was neither negligent nor careless for the non appearance. The applicant, thus, requests for condoning the non-attendance of the PH and submitting the relevant .....

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ping Bill. 5. Personal hearing was scheduled in this case on 2603.2015,07.05.2015 & 09.06.2015 Nobody attended the hearing. The applicant vide their letter dated 01.06.2005 requested to decide the issue on the basis of available documents/records. 6. I have gone through the facts of the case, record available in the case file and have perusal impugned Order-in-Original and Order-in-Appeal. 7. Government observe that the applicant were initially granted drawback for exports made by him. Subse .....

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drawback and also imposed penalty. Commissioner upheld the impugned Order-in-Original. Now, the applicant had filed this Revision Application on grounds mentioned in para (4) above. 8. Government observes that the provisions of recovery of already sanctioned drawback have been prescribed under Section 75 of the Customs Act, 1962 and Rule 16A of the Customs, Central Excise and Service Tax Duty Drawback Rules 1995. The relevant provisions are reproduced as under: "SECTION 75. Drawback on imp .....

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82 and in respect and in respect of which an order permitting clearance for exportation has been made by the proper officer, a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class of description used in the manufacture or processing of such goods or carrying out any operation on such goods, the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance whi .....

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he value of the imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf for the exporter in India within the time allowed under the Foreign Exchange mana .....

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(hereinafter referred to as the claimant) but the sale proceeds in respect of such export goods have not been realized by or on behalf of the exporter in India within the period allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such drawback shall be recovered in the manner specified below. (In rule 16A, in sub-rule (1) bold words has been substituted vide Notification No. 19/2003-Customs (N.T.) dated 03/03/2003 Provided that the time- .....

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r the Deputy Commissioner of Customs, as the case may be or Deputy Commissioner of Customs shall cause notice to be issued to the exporter of production of evidence of realization of export proceeds within a period of thirty days from the date of receipt of such notice and where the exporter does not produce such evidence within the said period of thirty days, the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be of Deputy commissioner of Customs shall pass .....

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e portion of the sale proceeds not realized bears to the total amount of sale proceeds. (3) Where the exporter fails to repay the amount under sub-rule (2), it shall be recovered in the manner laid down in rule 16. (4) Where the sale proceeds are realized by the exporter afar the amount of drawback has been recovered from him under sub-rule (2) or sub-rule (3) and the exporter produces evidence about such realization within one year from the date of such recovery of the amount of drawback, the a .....

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pulated period and they have submitted the copies of Bank Realization Certificates (BRCs) in reply dated 04.07.2011 to impugned Show Cause Notice but the same were not taken into consideration. This plea was also taken by the applicant before Commissioner (Appeals). Now, they have taken the same plea before the Revisionary Authority and also submitted photocopies of BRCs. However as letter dated 04.07.2011 is not placed on record it is not known whether the same BRCs were given in response to th .....

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