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2016 (7) TMI 467 - GOVERNMENT OF INDIA

2016 (7) TMI 467 - GOVERNMENT OF INDIA - 2016 (343) E.L.T. 899 (G. O. I.) - Refund of duty drawback claim repaid earlier - Proper format - Earlier, recovery proceedings were initiated for duty drawback sanctioned earlier since respondent / exporter had failed to produce the proof of realization of export proceeds - the respondent repaid the said ineligible drawback along with interest and the penalty amount on 31.01.2013. Meanwhile they received the requisite certificate evidencing realization o .....

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paid by them later. Moreover, no proof of realization of export proceeds was furnished by them within the stipulated period of three months. The enabling statutory provision viz. Rule 16A (4) for refund of drawback recovered will undisputedly be subject to provisions of the said Rule. Therefore, the Commissioner (Appeals) has clearly erred in holding the refund as admissible once the that Bank Realization certificates were produced by the exporter within a period of one year from the date of rec .....

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ule 16A (4) of the Customs, Central Excise and Service Tax Drawback Rules, 1995 and the impugned Order-in Appeal is thus set aside as not being legal and proper. - Decided in favor of revenue. - F.No.380/62/DBK/14-RA - ORDER NO. 32/2016-CUS - Dated:- 22-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by the applicant Commissioner of Customs, Tuticorin against the Order-in-Appeal No.57/2014 dated 27.03.2014 passed by the Commissioner of Customs & Centra .....

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was sanctioned drawback and the same was paid to them. However, since the respondent had failed to produce the proof of realization of export proceeds, Show Cause Notice dated 21.03.2012 was issued to them, inter-alia, demanding the ineligible drawback along with interest thereon. After following the due process of law, the lower authority, vide his Order-in-Original No.457/2012 dated 15.05.2012 confirmed the demand amounting to ₹ 5,03,240/- (equivalent to the drawback sanctioned to them) .....

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en received within a period of one year from the relevant date, they filed a refund claim dated 09.02.2013 and the same was rejected by the lower authority as not in proper format. Again the respondent filed the refund claim on 13.05.2013 enclosing BRCs for the refund of said repaid drawback amount in terms of Rule 16 (4) of the Customs, Central Excise and Service Tax Drawback Rules 1995. However, the lower authority rejected the refund claim vide impugned Order-in-Original on the grounds that t .....

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s: 4.1 Commissioner (Appeals), while passing the order, had failed to consider the fact that the provision to rule 16A (4) has been amended vide Notification No.49/2010 Cus. (N.T.) dt.17.06.2010 wherein it was amended that the evidence of sale proceeds must be produced within a period of three months from the date of realization of sale proceeds. Further such period of three months could be extended by period of nine months by making an application to the concerned Commissioner of Customs and Ce .....

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Trichy, setting aside the Order-in-Original No.446/2013, dated 22.10.2013, passed by the Assistant Commissioner of Customs (Refund), Custom House, Tuticorin, is not proper and legal. 5. A Show Cause Notice was issued to the respondent under Section 129DD Customs Act 1962 to file their counter reply. They vide letter dated 10.10.2014 submitted the parawise cross objection on the ground of revision application. They have mainly submitted that: 5.1 The department did not file any cross objections .....

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wledge of the respondent. The copy of the appeal was sent to the department and also the notice of personal hearing was marked to the department. The department did not point out the amendment made to the said Rule before the Commissioner (Appeals) and did not file any cross objection or filed any submission during the personal hearing. No representative of the department attended the personal hearing. Now it is not open to the department to take this ground before the Revisionary Authority. 5.2 .....

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to allow production of BRCs before the lower authority for reconsideration of the confirmed demand, only due to the reason that the drawback was paid by the sincere and law obedient exporter. For his sincerity the exporter is being punished. If the drawback had not been paid by the exporter then the department would have allowed production of BRCs and dropped the demand of drawback and the liability of the exporter to pay back the drawback would have been cleared. 5.3 In the case of M/S Ramkumar .....

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authorities for verification and to allow the Drawback as per law. In the cited case department did not file Revision petition against the Order-in-Appeal. The department cannot take different stand in the present case and refuse to pay the refund of recovered drawback accepting the BRCs produced. 5.4 While passing the Order-in-Original, the Assistant Commissioner failed to notice that the department did not respond to the letter of the notice dated 23.05.2012 submitting the BRCs and did not in .....

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imed refund by producing the BRCs and based on the Order in-Appeal. 5.5 The Assistant Commissioner did not consider the submission of the respondent that where the sale proceeds are realized by the exporter after the amount of drawback has been recovered from him under sub-rule (2) or sub-rule (3) to Rule 16 of Drawback Rules, and the exporter produces evidence about such realization within one year from the date of such recovery of the amount of drawback, the amount of drawback so recovered sha .....

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sioner did not hold that due to the amendment of Rule 16(A)(4) by-Notification No.49/2010-Cus (NT) dated 17.06.2010, the-refund claim -is being rejected. When the refund claim was not rejected on this ground of amendment, and when the department did not take this ground before the appellate authority neither by filing cross objection nor by representing during personal hearing, the department is precluded in taking this ground before the revisionary authority and it is not legally sustainable. 5 .....

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on behalf of the respondent wherein it was requested to uphold impugned Order-in-Appeal. The applicant department vide their letter dated 21.04.2015 and 03.03.2016 requested to decide the case on merit. 7.Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government notes that the respondents were initially sanctioned drawback claims. Subsequently, the original authority vide impugned Order-in-Original confirmed the .....

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d that the respondent had not filed an appeal against the impugned Order-in-Original and as such, the impugned Order-in-Original attained finality. Commissioner (Appeals) set aside impugned Order-in-Original and decided the case in favour of the respondents. Now, the applicant department has filed this Revision Application on grounds mentioned in para (4). 9, Government observes that the applicant department is contesting that Rule 16A(4) has been amended vide Notification No.49/2010-Cus (NT) da .....

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dy sanctioned drawback. The Commissioner (Appeals) has allowed the refund of drawback recovered from the respondent under the provisions of erstwhile Rule 16A (4) ibid. The respondents have given various contentions against ground of Revision Application. The main issue for decision is whether refund claim under Rule 16A (4) is admissible or not. In view of rival contentions, Government proceeds to decide the case in light of statutory provisions relating to drawback. 9.1 Government notes that R .....

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within the period permitted by the Reserve Bank of India" shall be inserted; (c) the following proviso shall be inserted, namely: " Provided that- (i) the Commissioner of Customs or Comn7issioner of Customs and Central Excise, as the case may be, may extend the aforesaid period of three months by a period of nine months provided the sale proceeds have been realized within the period permitted by the Reserve Bank of India; (ii) an application fee equivalent to 1% of the FOB value of ex .....

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alized by the exporter after the amount of drawback is recovered from him. However, in impugned case, the facts are different. The exports proceeds are said to be received in the year 2010, while the demand was confirmed vide impugned Order-in-Original dated 14.05.2012 and the amount confirmed paid by the respondent on 31.01.2013. As such, this is not a case where the realizations of export proceeds were made after demand for already sanctioned drawback was confirmed. The applicant has claimed t .....

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) is applicable only in a specific scenario i.e. where the re-payment of drawback amount by the recipient has been made but the sale proceeds are realized subsequently. Further, the evidence of such realization has to be produced within three months (or further six months in case of extension by Commissioner) from the date of such realization. In the present case, the foreign remittance is claimed to have realized by the respondent first and the amount was repaid by them later. Moreover, no proo .....

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