9911796707
TMI Blog2023 (5) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... as Rs.2,93,42,875/-, on which the sanctioned draw back amount was Rs.42,41,332/-. The appellant duly received the payments for the exports made and was in possession of the BRCs issued by the Bank. In July, 2003, the Asstt. Commissioner (Preventive), New Delhi vide letter dated 27.02.2003 informed the Branch Manager, Punjab National Bank, Bara Khamba Road, New Delhi that necessary inquiries in respect of the appellant have been completed, and the party is found to be genuine exporter and thus, the bank account of the appellant can be de-freezed. 3. Subsequently, on the basis of some intelligence, Revenue started inquiry and conducted search on 31.01.2006 at the premises of the appellant. The search was conducted in presence of Mr. Vipin Jain and Mr. Sunil Jain, the owners of the premises. They stated that the proprietor of Arihant Overseas is Mr. Raj Kumar Jain, who is out of station and they knew about the export, and will send him to the customs house, as desired. The appellant thereafter appeared before the customs authorities on 10.02.2006 and submitted all the documents pertaining to the export under draw back. Thereafter on 07.12.2006 and 12.12.2006, Mr. Raj Kumar Jain, Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Raj Kumar Jain was recorded on 13.12.2011, wherein he, inter alia, stated that he did not remember the exact name of the person through whom he negotiated and obtained contract of Russian parties, and he does not have contract with the Russian clients. He does not have any documentary evidence regarding the receipt of the goods by the buyer in the foreign country exported by him. He has received the payments for the exports made after dispatch. The goods were purchased by him from the various suppliers and is not in possession of the purchase bills, the matter being very old. There is no written agreement with the Russian buyers about opening of the LC and the instructions were received verbally all the times. 7. It appeared to Revenue that export incentives in the form of draw back have been availed by the appellant, corresponding to the exports made to the Russian Companies / buyers under Indo-Russia Rupee - Ruble Agreement. However, as per the information provided by the Consulate General of India, Moscow in Russia, the consignees/buyers have (morefully mentioned in Table I of the show cause notice, para-3) had not traded with Indian companies during the years 2002-2005. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de may issue from time to time such instructions or frame such schemes as may be required and anything contained in this policy insofar as it is inconsistent with such instructions or schemes shall not apply. 9. DGFT had issued various circulars regulating exports to Russia under the debt repayment agreement, which states that RBI circular prescribing revised procedure may be followed. As per Circular No. 30 dated 28th September 1993; in case of goods exported to Russian Federation under repayment of State Credit Scheme, do not reach Russia and are diverted to other countries, it amounts to violation of provisions of RBI Circulars, which prohibit such exports under the said scheme. Violation of RBI circulars is the violation of provisions of para-2.15 of Exim Policy 2002 - 2007. Section 3 of Foreign Trade (Exemption from application of rules of certain cases) Order 1993, Import Trade Regulation means the act and the rules and orders made thereunder, the exemption from the application of rules in case of imports or exports, which are not covered by the said exemption under this Section are regulated by virtue of this order to follow Foreign Trade (Regulation) Rules 1993. This means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be returned along with interest under Section 75 read the Section 75(A) of the Act, read with Rule 16 (A) of the Customs and Central Excise Drawback Rules, 1995. 12. Accordingly, show cause notice dated 26.12.2016 was issued invoking the extended period of limitation demanding the duty drawback amount of Rs. 42,41,332/- alleged to be availed fraudulently with further proposal to confiscate the goods already exported valued at Rs. 2,93,42,875 under Section 113 (d) & (i) of the Act alongwith interest and further penalty was also proposed under Section 114 (iii) of the Customs Act. 13. The show cause notice was adjudicated on contest by the Joint Commissioner vide order-in-original dated 16.03.2021 confirming the drawback demand of Rs..35,47,385. Further ordering confiscation of the goods on account of exports under drawback under Section under 113(i) of the Customs Act along with interest and further penalty of Rs.30 Lacs was imposed under section 114 (iii) of the Act. 14. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), inter alia, on the following grounds- "14.1 That they filed shipping bills and handed over the goods for export; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat receipts of sale proceeds or return can be only through RBI; that extensive enquiry has not been made about the money remitted back into the account of the importer. 14.8 That letter dated 11.07.2005 of Federal Customs Service, Russia is a vague statement giving some information, which is derived from records; that the statement in the letter can not be admitted as evidence without the documents, from which the said information was taken. 14.9 That the Revenue relies upon letter dated 06.11.2007 of Acting Head of Central Department AA Ufrutob to First Secretary Trade, Embassy of India, Moscow, stating that the money was sent by three Russian Companies to Indian exporters as pre-payment for delivery of goods to RF (Russian Federation) and returned as deliveries never took place on the territory of RF; that a floppy was enclosed with the said letter; that the appellant was provided a chart showing the name of importer, exporter, payments and return of payments, that the chart shows return of Rupees Ninety Six Lakhs from the appellant to Russian company against payment of Rupees Ninety Six Lakhs made to the appellant by the Russian Company; that there is no evidence that the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation of goods which do not correspond in respect of value or in any material particular with the declaration made; that there is no such allegation of any discrepancy in the declarations filed by the appellant in the shipping bills, that consequently the goods are not liable for confiscation under Section 113(i); that Section 113 (i) has a limited field of operation i.e. mis-declaration of material facts by the exporter; further it is not in dispute that the buyers have made the payments. 14.15 That the appellant did not do any act to render the goods liable for confiscation and thus the goods are not liable for confiscation, therefore, penalty is not imposable on the appellant. 15. However, the Commissioner (Appeals) rejected the grounds taken by the appellant, as well as the ground of limitation, and dismissed the appeal. Being aggrieved, the appellant is before this Tribunal. 16. Ld. Counsel further urges that the show cause notice is wholly barred by limitation. She further urges that the show cause notice has been issued without there being any adverse material on record, save and except the assumptions and presumptions. Pursuant to exports, the draw back was disburs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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