2013 (10) TMI 1306 - CGOVT - Customs

Duty drawback claim - Non discharge of obligation of producing the export realization certificate as stipulated under the duty Drawback Rules - Held that - Applicant can submit certificate about realization of export proceeds in the prescribed format either from said dealer or Chartered Accountant in his capacity as a statutory auditor of the exporter s account. The appellate authority in its findings has observed that the M/s. S.A. Faujdar & Co., Chartered Accountant who certified the negative statement, is not a statutory auditor of the company. This fact has also been admitted by the applicant. However, the applicant submitted certificate of authorized dealer before Commissioner (Appeals) and this fact is also admitted by appellate authority. However, appellate authority did not consider the certification stating that the same were not submitted before proper authority i.e. the original authority. Government finds that his observation of Commissioner (Appeals) is not proper. Once, the applicant duly submitted certificate from authorized dealer, he has complied with requirement of above said Circular dated 2-2-2009. Under such circumstances, Government finds that order of appellate authority is not proper and hence, not sustainable. However, Government notes that these certificates issued from authorized dealer were not before original authority - Matter remanded back - Decided in favour of appellant.

Issues Involved:
1. Non-compliance with the obligation of producing export realization certificates as stipulated under the Duty Drawback Rules.
2. Validity and acceptability of certificates issued by a Chartered Accountant who was not the statutory auditor.
3. Consideration of certificates from authorized dealers submitted at the appellate stage.

Issue-wise Detailed Analysis:

1. Non-compliance with the Obligation of Producing Export Realization Certificates:
The applicant, M/s. Alfal Laval (India) Ltd., obtained a drawback of Rs. 1,21,93,215/- for exports made via various shipping bills. A demand-cum-show cause notice was issued alleging that the applicant failed to produce the export realization certificates as required under the Duty Drawback Rules. The adjudicating authority dropped the show cause notice (SCN) based on a negative statement certified by Chartered Accountant M/s. S.A. Faujdar & Co., except for one shipping bill where the export proceeds were not realized. Consequently, the drawback amount for that shipping bill was recovered with interest.

2. Validity and Acceptability of Certificates Issued by a Chartered Accountant:
The Commissioner (Appeals) set aside the Order-in-Original, observing that the negative statement was certified by M/s. S.A. Faujdar & Co., who was not the statutory auditor for the applicant during the relevant period (1-1-2004 to 31-12-2008) as required under C.B.E. & C. Circular No. 5/2009-Cus., dated 2-2-2009. Therefore, the certificate was deemed invalid. The applicant contested this by arguing that Rule 16A of the Customs, Central Excise Duties, and Service Tax Drawback Rules, 1995, does not specify that the certificate must be issued by a statutory auditor. The applicant also highlighted that they had submitted certificates from authorized dealers on specific dates to the Deputy Commissioner of Customs, which were not considered by the appellate authority.

3. Consideration of Certificates from Authorized Dealers Submitted at the Appellate Stage:
The applicant argued that procedural lapses should be condoned if exports have genuinely taken place, citing precedents where substantive benefits were not denied due to procedural infractions. The government noted that the applicant had complied with the requirement of the Circular dated 2-2-2009 by submitting certificates from authorized dealers. However, these certificates were not presented to the original authority. The appellate authority's refusal to consider these certificates was deemed improper.

Government's Observations and Decision:
The government observed that the applicant exported goods and claimed drawbacks under Section 75 of the Customs Act, 1962. According to the Act and related rules, if export proceeds are not realized within the time allowed under FEMA, 1999, the drawback amount must be recovered. The show cause notice issued to the applicant highlighted non-compliance with the relevant provisions of the Board's Circular No. 5/2009-Cus., dated 2-2-2009, and Rule 16A(1)(2) of the Drawback Rules, 1995.

The government found that the applicant had submitted certificates from authorized dealers, fulfilling the requirements of the Circular. Therefore, the order of the appellate authority was deemed not proper and unsustainable. The case was remanded back to the original authority to reconsider the matter, taking into account the certificates issued by authorized dealers regarding the receipt of export sale proceeds. A reasonable opportunity for a hearing was to be provided to the concerned parties.

Conclusion:
The impugned Order-in-Appeal was set aside, and the case was remanded back to the original authority for fresh consideration in accordance with the law, based on the certificates issued by authorized dealers. The Revision Application was disposed of accordingly.

← Previous Next →