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2016 (11) TMI 854 - MADRAS HIGH COURT

2016 (11) TMI 854 - MADRAS HIGH COURT - 2017 (347) E.L.T. 249 (Mad.) - Acceptance of Bank Realization Certificate (BRC) as proof of export and realization of export proceeds of the shipment - duty drawback - the claim of the respondent that drawback be recovered by the petitioner, as the petitioner failed to produce evidences for having realized the sale proceeds in foreign exchange exports made within the stipulated period of six months in the form of BRC, justified? - whether the dismissal of .....

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r (Appeals) could not have rendered the findings on merits when the appeal itself is held to be not maintainable. Therefore, the findings rendered in paragraph 8.3 of the order passed by the Commissioner (Appeals) has to be necessarily eschewed. So the first question is decided in favour of the petitioner. - Whether the Department could refuse to consider the petitioner's case when admittedly the Original Authority did not examined as to whether the BRC were submitted within the time permitt .....

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their letters dated 23.11.2006 and 27.07.2007 to the Assistant Commissioner, ICD, Tirupur merits consideration. Therefore, merely because the Original Authority has decided exparte cannot operate as estoppel and the Department cannot refuse to consider the factual position, especially when the petitioner has prima facie established before this Court that they have produced the BRC before the concerned authority at Tirupur. Therefore, de hors the finding rendered by the Commissioner (Appeal) as .....

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- T. S. Sivagnanam, J. For the Petitioner : Mr.R.Anish Kumar For the Respondent : Mr.Raj Kumar Jhabakh ORDER Heard Mr.R.Anish Kumar, learned counsel appearing for the petitioner and Mr.Raj Kumar Jhabakh, learned Junior Panel Counsel appearing for the respondent. By consent, the writ petition is taken up for final disposal. 2. The petitioner in this writ petition seeks for an issuance of a writ of Mandamus to forbear the respondent from recovering a sum of ₹ 20,69,545/- from the petitioner .....

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amount of ₹ 30,69,545/- received by them as drawback be not recovered as the petitioner failed to produce evidences for having realized the sale proceeds in foreign exchange exports made within the stipulated period of six months in the form of BRC. There was also a proposal for imposition of penalty under Section 117 of the Customs Act, 1962 (hereinafter referred to as the Act). It appears that though show cause notices were received, the petitioner did not respond to the show cause not .....

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itioner brought to the attention of this Court that the copies of those letters which were filed in the typed set of papers shows that there is an acknowledgment given by the Department. So far as the penalty is concerned, the Original Authority did not impose any penalty and the Department filed an appeal as against that and both the appeals were heard together by the Commissioner (Appeals). However, on consideration of the appeal, it was found that it was filed beyond the period of limitation .....

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and since the same was not considered, they have filed this writ petition. The learned counsel for the petitioner submitted that the original BRC having been submitted within the time permitted in terms of Sub-rule (4) of Rule 16A of the Customs and Central Excise Duties Drawback Rules, 1955, they are entitled for the drawback as evidence of BRC has been produced by the petitioner. The Department on the other hand would contend that the petitioner have not preferred any appeal against the Order .....

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he Original Authority did not examined as to whether the BRC were submitted within the time permitted. So far as the first question is concerned, on perusal of the order passed by the Commissioner (Appeals) it is seen that the appeal filed by the petitioner was rejected as time barred. If that is so, the findings rendered by the Commissioner (Appeals) in paragraph 8.3 commenting upon the non-submission/belated submission of the BRC should be held to be without jurisdiction since the Commissioner .....

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