TMI Blog2023 (4) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... -original dated 17.08.2016 on three grounds. First, that the same was passed in violation of the principles of natural justice as the petitioner was not afforded any opportunity of being heard. Second, that the petitioner had received remittances against most of the Shipping Bills in question but the reconciliation of BRCs with the Shipping Bills was taking some time. Third that receipts were adequately protected by the cover provided by Export Credit Guarantee and the duty drawback was not recoverable in terms of Rule 16A(5) of the Drawback Rules. It was not the petitioner s case that drawback is not an export incentive. The Revision Application filed by the petitioner indicates that the principal ground urged by the petitioner was in terms of Rule 16A(5) of the Drawback Rules, duty drawback is not available. The petitioner also claimed that on a conjoint reading of Rule 16A(5) of the Drawback Rules and the RBI Circular dated 12.03.2013, the petitioner was entitled to write off unrealised portion of the drawback. On plain reading of sub-rule (5) of Rule 16A of the Drawback Rules, it is apparent that duty drawback paid to an exporter is not required to be recovered if three cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the amount of duty drawback aggregating ₹43,03,415/- availed by it in respect of certain Shipping Bills (ten in number) as listed in the annexure to the notice, not be recovered in terms of the proviso to Sub-section (1) and Clause (ab) of Sub-section 2 of Section 75 of the Customs Act, 1962 (hereafter the Customs Act ) read with Rule 16A of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 (hereafter the Drawback Rules ). In addition, the petitioner was also called upon to show cause why penalty not be imposed under Section 114 of the Customs Act. 4. It appears that the petitioner did not respond to the said show cause notice. The said show cause notice was adjudicated and the Adjudicating Authority passed an order dated 17.08.2016 confirming the demand of ₹43,03,415/- 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 a penalty of an equivalent amount of ₹43,05,415/- under Section 114 of the Customs Act. 5. A plain reading of the said order dated 17.08.2016 indicates that the petitioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P (DIR Series) Circular No.88]. He submitted that the petitioner was entitled to write off unrealised export bills up to a maximum of 10% of the total export proceeds realised during the previous calendar year. The petitioner had barely written off 0.6% of the unrealised bills, which was well within the permissible limit. 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. 11. We find no merit in the contention that the impugned order in original was 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 22.05.2016, 25.07.2016 and 28.08.2016. However, the appellant had not appeared on either of the hearings. 12. Insofar as the petitioner s challenge to the recovery of duty drawback is concerned, we find that the ground now sought to be urged was not urged before the Adjudicating Authority, the Appellate Authority, or the Revisional Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also absolved the petitioner from refunding the duty drawback availed by the petitioner, is without merit. 15. It is relevant to refer to Section 75 of the Customs Act, which contains provisions regarding drawback. The second proviso to Section 75 is relevant and reads as under: 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 of the exporter in India within the time allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), such drawback shall except under such circumstances or such conditions as the Central Government may, by rule, specify, be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback. 16. It is apparent from the above that by virtue of the second proviso, the petitioner was liable to pay the amount of duty drawback availed by it in respect of exports in respect of which the consideration had not been received in India within the time as permitted under FEMA. It is, plainly, erroneous to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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