TMI Blog2001 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authority. According to the petitioner he became entitled to receive an aggregate sum of Rs. 1,19,14,858.25 from the respondents on account of drawback. The said exports were permitted to be made by the Customs authorities after they were satisfied with the particulars of the goods conforming to the description mentioned in the shipping bills. In spite of submission as above the respondent authorities, however, did not process or proceed with the application for release of drawback and the same has been illegally and wrongfully withheld from payment. Over and above without any informed reason the respondent authorities have seized the bank account of the petitioner maintained for this purpose with United Bank of India in its Calcutta Main Branch. 3.Mr. Pratap Chatterjee, learned Senior Advocate appearing with Mr. Banerjee learned Senior Advocate and Mr. Chowdhury learned Advocate for the petitioner submits that under the Customs Act, 1962 (hereinafter referred to as the said Act) the respondent authority has no power either expressly or otherwise to attach or seize the bank account. He contends that it can only be done in certain circumstances for recovery of Government dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th United Bank of India in its Calcutta Main Branch. On subsequent attempt for export it was found that the petitioner grossly mis-declared the goods as to its value and quantity. Therefore, investigation has been started. While it being done so, it was found that there was no export at all so to say. 7.At the time of hearing of this application the respondent authorities could not produce any document of non-receipt of export proceeds and after hearing was over and the matter was kept pending for delivery of judgment an application has been made for adducing additional documents which purport to establish that there was no export at all. In the application filed by the respondents herein as above the bank account of the Forex Bank as well as a letter of this Bank have been annexed. The HDFC Bank is the notified Forex Bank under relevant regulation and by a letter dated 10th August, 2001 the said Bank has intimated to the Customs authority that they had not received any credit from Overseas/Foreign Bank by way of Foreign Exchange nor it had handled any export documents for the petitioner during December, 2000 to January, 2001. 8.It was found by the Court that the said documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled to the effect that the authorities have right and jurisdiction to reopen a case where, though export apparently has been made, if it appears that the declaration made in respect of such export goods is in any way incorrect, untrue or false. In support of his contention he has relied on decisions reported in 1980 (6) E.L.T. 38 (Cal.) = AIR 1980 Cal. 188 (F.B.), AIR 1976 SC 1527, 1997 (90) E.L.T. 31 (Cal.) and 1994 (69) E.L.T. 625 (S.C.). 12.Mr. Roychowdhury has also relied on various orders of this Court relating to seizure of the bank account passed at the interlocutory stage. 13.Having heard the respective contention of the learned Advocates it appears to me that two points primarily are required to be considered to decide this matter, viz., (1) whether the Customs authorities have the right to write letter or send communication to the petitioner's Banks directing them not to allow the petitioner to operate his bank account and (2) whether the customs authorities have a right to withhold payment of drawback merely on suspicion that in the matter of separate export, the petitioner might have committed irregularity. 14.Because of additional materials being produced be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for drawback after complying with the requirements specified in the deficiency memo, the same will be treated as a claim filed under sub-rule (1) for the purpose of Section 75A. For(4) computing the period of two months prescribed under Section 75A for payment of drawback to the claimant, the time taken in testing of the export goods, not more than one month, shall be excluded." 16.It will appear from the aforesaid Rule 13 of the said Drawback Rules that there are various relevant documents which are required to be filed with such application for drawback and the same are required to be examined by the proper officer of the Customs. In the writ petition I do not find any document excepting shipping bills. No copy of the Letter of Credit nor export contract has been annexed, though admittedly in some cases drawbacks have been allowed. It is not known to me as to how the drawback was allowed. However, it was for the department to scrutinize the same. 17.Under Regulation 3(1) of the Foreign Exchange Management (Export of Goods and Services) Regulation, 2000 a declaration is mandatory on part of the exporter of the Forex Bank through whom export proceeds in foreign currency is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment by mistake as if the same ought not to have been paid at all. The said amount, in my view, belongs to the department concerned. The writ petitioner has no proprietary interest in the money which is lying in the said bank account. But then this money has to be realized and/or recovered from the petitioner in accordance with the rules if not paid by the writ petitioner of its own and such procedural method is explicitly provided in Rule 16A of the said Drawback Rules which provides as follows :- "16A. Recovery of amount of Drawback where export proceeds not realized. - Where an amount(1) of drawback has been paid to an exporter or a person authorized by him (hereinafter referred to as the claimant) but the sale proceeds in respect of such export goods have not been realized by or on behalf of the exporter in India within the period allowed under the Foreign Exchange Regulation Act, 1973 (46 of 1973), including any extension of such period, such drawback shall be recovered in the manner specified below. On(2) receipt of relevant information from the Reserve Bank of India, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall cause notice to be iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney which is discovered to have been handed over to and collected by the petitioner wrongfully and the same is required to be recovered in accordance with law. 20.Therefore, I accept the argument of Mr. Roychowdhury and Mr. Sen that the meaning and connotation of the word "things" as defined in Black's Law Dictionary in its 5th Edition includes the money which is lying in the aforesaid bank account. The power of seizure of documents and things has been provided in Section 110(3) of the said Act. In the event the aforesaid amount which is lying in the said bank account is not refunded then the same has to be realized under the provision of Rule 16A of the said Drawback Rules read with second proviso of sub-section (1) of Section 75 of the said Act. The power of seizure under Section 110 of the said Act has been provided in respect of any proceeding under this Act. Sub-section (3) of Section 110 of the Customs Act is clear on this aspect which I reproduce hereunder : "110(3).The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act." 21.In order to draw up a proceeding under second proviso of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
