2010 (8) TMI 320 - HC - Customs

Drawback Fraudulent availment - Heat Resistant Rubber Tension Tape (Strip Elastic Rubber) and not Heat Resistant Rubber Tape which were the goods exported by the appellant - goods exported by the appellant were not eligible for drawback the appellant had filed a false drawback claim in respect of the goods - appellant has claimed drawback also on the excise duty component of the goods exported - goods exported by the appellant and the goods specified in the Drawback Schedule are different products and that the goods exported by the appellant do not answer the description specified in the Drawback Schedule - On behalf of the appellant nothing has been pointed out to indicate that the findings recorded by both the authorities below are in any manner unreasonable or perverse Order denying drawback sustainable As the drawback sanctioned was liable to be recovered under Rule 16 of the Drawback Rules and as such the provisions of Section 28 would not be applicable to the facts of the present case. - even if the provisions of Section 28 were to be applied the appellant having made a false claim to the extent of the excise duty component of drawback the provisions of Section 28 of the Act would also be squarely attracted.

Summary

Issues Involved:
1. Reliance on the test report dated 27-6-2010 for goods exported between 24-1-2000 to 31-3-2000.
2. Recovery of drawback under Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, beyond the period of limitation prescribed under Section 28 of the Customs Act, 1961.
3. Classification of the exported product as "heat resistant rubber tape" versus "heat resistant rubber tension tape (strip rubber elastic)".
4. Conclusion on the different uses and characteristics of "heat resistant rubber tape" and "heat resistant rubber tension tape".
5. Initiation of recovery proceedings in the absence of a challenge to the orders sanctioning drawback.

Detailed Analysis:

1. Reliance on the Test Report:
The appellant argued that the test report dated 27-6-2010, pertaining to samples drawn on 29-5-2000, could not be applied to goods exported earlier between 24-1-2000 and 31-3-2000. The court noted that the goods exported during the earlier period were also obtained from M/s. Ratan Lila & Co. Ltd., which was not manufacturing the goods in question. Therefore, the goods exported earlier were also exported under a false drawback claim.

2. Recovery of Drawback Beyond Limitation Period:
The appellant contended that the recovery of drawback was beyond the period of limitation prescribed under Section 28 of the Customs Act, 1961. The court held that the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995 are self-contained provisions and do not prescribe any limitation for recovering erroneously paid drawback. Thus, the extended period of limitation could be invoked due to willful misstatement or suppression of facts by the appellant.

3. Classification of Exported Product:
The appellant claimed that the exported product "heat resistant rubber tape" should be classified as "heat resistant rubber tension tape (strip rubber elastic)" as per the Drawback Schedule. The court found that the goods exported did not match the description in the Drawback Schedule. The goods exported were "heat resistant rubber tape," not "heat resistant rubber tension tape," and thus were not eligible for the claimed drawback.

4. Different Uses and Characteristics:
The Tribunal concluded that "heat resistant rubber tape" and "heat resistant rubber tension tape" have different uses and characteristics. The court upheld this finding, noting that the goods exported lacked the "tension/elastic" characteristics required for the drawback classification. The appellant failed to demonstrate that the findings were unreasonable or contrary to the material on record.

5. Recovery Proceedings Without Challenge to Orders:
The appellant argued that recovery proceedings could not be initiated without challenging the orders sanctioning the drawback. The court dismissed this contention, stating that the drawback was wrongly claimed and disbursed based on false documents and misstatements. The recovery of the erroneous drawback was justified under Rule 16 of the Drawback Rules.

Conclusion:
The court dismissed the appeal, upholding the Tribunal's order for the recovery of Rs. 64,80,000/- as drawback wrongly disbursed. The court found that the appellant had falsely claimed drawback on the excise duty component without a supporting manufacturer, and the goods exported did not match the description in the Drawback Schedule. The extended period of limitation was applicable due to willful misstatement and suppression of facts. The findings of the adjudicating authority and the Tribunal were based on substantial evidence and were not vitiated by any legal error.