TMI Blog2015 (6) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... drawback availed by them for the reasons of failure to realize export proceeds within stipulated time limit - revision application rejected - decided against applicant. - F. No. 373/104/DBK/2013-RA - 13/2015-Cus - Dated:- 19-6-2015 - Ms. Rimjhim Prasad, Joint Secretary Shri R. Arumugam, Consultant, for the Assessee. None, for the Department. ORDER This Revision Application is filed by M/s. Primo Fashions, Tirupur (hereinafter referred to as applicant) against the Order-in-Appeal No. CMB-CEX-OOO-APP-258-13, dated 26-8-2013 passed by the Commissioner of Customs, Central Excise Service Tax (Appeals) Coimbatore with respect to Order-in-Original No. 75/2013-(ACC), dated 1-3-2013 passed by the Assistant Commissioner of Customs, Air Cargo Complex, Coimbatore. 2. Brief facts of the case are that the applicant was initially granted drawback for exports made by them. Subsequently, Show Cause Notice was issued to the applicant for recovery of already sanctioned drawback on the ground that applicant failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent on 25-10-2012) four days in advance of date fixed for the Personal Hearing. 4.2 Since the applicants had filed the BRC which is the subject matter of Show Cause Notice and Personal hearing well in advance, the applicants did not attend for the Personal Hearing fixed on 29-10-2012, on the reasonable belief that the department would close the issue as the applicants had submitted the BRC on two occasions under proper acknowledgements and no purpose would be served by simply appearing before the respondent. However, to the utter shock and dismay to the applicants, they received the impugned Order-in-Original issued by the respondent which has been passed without taking into consideration of the facts and circumstances of the case. The Adjudicating Authority passed the above Order-in-Original without examining the factual position and without causing necessary verification of the records available with his own office and without observing the principles of natural justice. Precisely the orders have been passed in gross violation of the principles of natural justice and without verifying the records duly submitted by the applicants and made available to the Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale proceeds within the time limit and also informed the department under proper acknowledgement as required under the provisions of law. However, the Adjudicating Authority has failed to take into these submission or documents into consideration and orders have been passed with a pre-concluded decision. This is contrary to the normal adjudication proceedings in the matter of Drawback and much against the spirit of the procedures. 4.6 That in spite of all the above submissions along with documentary Proof the first Appellate Authority rejected the appeal on the grounds that the applicants failed to participate in the adjudication proceedings and the column of date of realization was found left blank in the BRC produced. Both the above observations are factually incorrect. As regards participation in the adjudication proceedings, it is submitted that no show cause notice has been received by the applicants and the fact has not been disputed at all. In the absence of any show cause notice the allegation that the applicants have not participated in the proceedings is unfair and unsustainable. Further on receipt of PH intimation, the original BRC had been filed before 4 days ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicants were initially granted drawback for exports made by them. Subsequently, Show Cause Notice was issued to the applicants for recovery of already sanctioned drawback on the ground that applicants failed to produce the evidence for realization of export proceeds in respect of impugned exported goods for which they were allowed drawback within the period allowed under Foreign Exchange Management Act, 1999 including any extensions of such period granted by the Reserve Bank of India. Therefore, the Original Authority vide the impugned Order-in-Original confirmed the demand of already sanctioned drawback and also imposed penalty. Commissioner (Appeals) upheld impugned Order-in-Original on the grounds that the applicants have not realized the sale proceed from their buyers abroad which is evident from the Bank Realization Certificates submitted by them which does not show date of realization of export proceeds. Now, the applicants have filed this Revision Application on ground mentioned in Para (4) above. 8. Government observes notes that it is a statutory requirement under Section 75(1) of Customs Act, 1962 Rule 16A(1) of Customs, Central Excise Service Tax Drawbac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to the claimant. 10. From perusal of above provision, it is evident that the drawback is recoverable, if the export proceeds are not realized within stipulated time limit or extension given by RBI, if any. In this case, it is an undisputed fact that the date of realization of export proceeds was not mentioned in Bank Realization Certificate submitted by the applicant. In absence of mention of date of realization of export proceeds, it cannot be concluded that realization of export proceeds were made by the applicant and were made within stipulated time limit including extension, if any, allowed by the RBI. The applicant has therefore failed to establish that export proceeds realization were made by them and were made within stipulated time including extension of RBI, if any. Under such circumstances, Government finds that the applicants are liable to pay drawback availed by them for the reasons of failure to realize export proceeds within stipulated time limit. Therefore, the lower authorities have rightly confirmed the recovery of said drawback amount along with interest and imposed penalty. 11. As d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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