TMI Blog2023 (4) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity to be heard. It is not disputed that the hearings were scheduled on 09.12.2019 and 30.12.2019. However, the appellant admittedly did not appear on either of the two hearings. Recovery of duty drawback - HELD THAT:- The ground now sought to be urged was not urged before the Adjudicating Authority, the Appellate Authority, or the Revisional Authority. The order-in-appeal indicates that the petitioner had challenged the order-in-original dated 11.11.2016/23.11.2016 on three grounds. First, that the same was passed without affording further time to prepare a reply. Second, that the petitioner was entitled to write off unrealised export bills in terms of the RBI Circular dated 12.03.2013; and third, that the penalty cannot be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received compensation from the ECGC. Thus, Rule 16A(5) of the Drawback Rules is not applicable. There are no ground to interfere with the impugned order - petition dismissed. - W.P.(C) 6207/2020 - - - Dated:- 11-4-2023 - HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR. JUSTICE AMIT MAHAJAN Petitioner Through: Mr A. K. Prasad and Ms Surabhi Sinha, Advocates. Respondents Through: Mr Ravi Prakash, CGSC with Mr Aman Rewaria, Advocate for R-1. Mr Harpreet Singh, Senior Standing Counsel with Ms Suhani Mathur and Mr Jatin Kumar Gaur, Advocates. VIBHU BAKHRU, J. 1. The petitioner has filed the present petition, inter alia, impugning an order dated 01.01.2020 (hereafter the impugned order ) passed by the Additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act. 4. It appears that the petitioner did not respond to the said show cause notices. The said show cause notices were adjudicated and the Adjudicating Authority passed an order dated 11.11.2016/23.11.2016 confirming the demand of ₹1,41,43,818/- along with interest on account of the duty drawback availed in respect of export shipments against which remittance in foreign exchange was not received. The Adjudicating Authority also imposed penalty of ₹20,00,000/- under Section 114 of the Customs Act. A plain reading of the said order dated 11.11.2016/23.11.2016 indicates that the petitioner had not responded to the show cause notices. It had instead sent a letter contending that it had not received the show cause notice and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to a maximum of 10% of the total export proceeds realised during the previous calendar year and the petitioner had barely written off 5.2% of the unrealised bills. He contended that there was no requirement to refund the duty drawback in terms of the RBI Circular as duty drawback is not an export incentive. Third, he contended that the petitioner was not required to refund the duty drawback in terms of Rule 16A(5) of the Drawback Rules. 7. We find no merit in the contention that the impugned order has been passed in violation of the principles of natural justice. The petitioner was afforded adequate opportunity to be heard. It is not disputed that the hearings were scheduled on 09.12.2019 and 30.12.2019. However, the appellant admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The RBI Circular dated 12.03.2013 relied upon by the petitioner is of no relevance to the controversy. In terms of the said Circular, Reserve Bank of India (RBI) liberalized the procedure for writing off the amounts receivable by exporters in respect of the export shipments. In terms of the said procedure, exporters were provided greater flexibility to write off the amounts due from overseas entities and the authorised dealers were also given wider latitude to accept requests from exporters to write off unrealised export invoices subject to the conditions as specified in the said Circular. It is material to note that the said Circular was issued under Section 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (hereafter FEMA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as permitted under FEMA. It is, plainly, erroneous to contend that the second proviso to Section 75 of the Customs Act is inapplicable in cases where write off is permissible under FEMA. Insofar as the contention that duty drawback is not recoverable in terms of Rule 16A(5) of the Drawback Rules is concerned, it would be necessary to refer to the said Rule. Rule 16A(5) of the Drawback Rules is set out below: 16A(5) Where sale proceeds are not realised by an exporter within the period allowed under the 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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