2013 (8) TMI 7 - CGOVT - Customs

Claim for duty drawback assessee filed a claim of duty drawback for export goods - The show cause notice was issued to the assessee for confiscation of 5268 cartons exported for which the drawback claimed - penal action u/s 114AA on the assessee - penal action u/s 114(iii) on the exporters and rejection of the duty drawback claim - Held that - Commissioner (Appeals) had rightly held drawback claim admissible at lower rate on Customs portion only - penalties u/s 114(iii) of Customs Act on the exporter - The penalty imposed on exporter u/s 114AA was set aside as the imposition of penalty u/s 114(iii) will meet the ends of justice - penalty was already imposed on exporting company and therefore the penalty imposed on u/s 114(iii) was set aside. CENVAT credit - availing Cenvat credit of some inputs and input services used in the manufacture of export goods was not denied by the exporter - The reversal of said Cenvat credit cannot make him entitled for drawback claim at higher rate since the condition for claiming higher rate of drawback were not satisfied at the time of export availment of Cenvat credit facility by exporter manufacturer is not denied by exporter and therefore the charge of mis-declaration of statement on the part of all noticees in relation to claim of drawback with an intention to avail drawback at higher rate stands proved. Commissioner (Appeals) has erred in setting aside the redemption fine and penalties - the redemption fine and penalties imposed by adjudicating authority appears harsh and their reduction is warranted order modified.

Summary

Issues Involved:
1. Admissibility of duty drawback claims.
2. Allegation of fraudulent claims and submission of forged certificates.
3. Imposition of penalties and confiscation of goods.
4. Reversal of Cenvat credit and its impact on duty drawback eligibility.

Detailed Analysis:

1. Admissibility of Duty Drawback Claims:
The primary issue revolves around the admissibility of duty drawback claims made by M/s. Texcellence Overseas. The exporter claimed a higher rate of duty drawback amounting to Rs. 3,70,832/- by declaring that their unit was not availing Cenvat credit. However, upon investigation, it was found that they had availed the Cenvat credit facility. The adjudicating authority initially rejected the entire drawback claim, while the Commissioner (Appeals) later held that the exporter was eligible for a lower rate of drawback (Customs component only) since they had availed Cenvat credit for some inputs and input services used in the manufacture of the export goods. The Government agreed with the Commissioner (Appeals) that the exporter was entitled to the lower rate of drawback due to the availed Cenvat credit.

2. Allegation of Fraudulent Claims and Submission of Forged Certificates:
The exporter was accused of submitting forged certificates to claim a higher duty drawback rate. The adjudicating authority alleged that the exporter managed to furnish forged certificates certifying that the unit was not availing Cenvat credit, which was used to claim an incorrect drawback rate of 9.1%. The Commissioner (Appeals) found that the forgery was not conclusively established and noted that there was no substantial proof that the alleged forgery had a material impact on the drawback admissibility. The Government, however, found that the charge of misdeclaration was proven as the exporter had availed Cenvat credit, and thus, the submission of forged certificates was intended to claim a higher rate of drawback fraudulently.

3. Imposition of Penalties and Confiscation of Goods:
The adjudicating authority imposed penalties and a redemption fine on the exporter and associated individuals. The penalties included a Rs. 4,00,000/- fine under Section 114AA of the Customs Act and additional fines under Section 114(iii). The Commissioner (Appeals) set aside these penalties, arguing that the goods were not available for confiscation and that the penalties were not justified due to the lack of conclusive evidence of forgery. The Government, however, restored the imposition of penalties, reducing the redemption fine to Rs. 1,00,000/- and adjusting the personal penalties to Rs. 25,000/- for the exporter and Rs. 10,000/- for Shri Gyan Singh P. Sisodiya. The penalty on Shri K.T. Aggarwal was set aside as he had only signed the export documents without knowingly misstating facts.

4. Reversal of Cenvat Credit and Its Impact on Duty Drawback Eligibility:
The exporter argued that they had reversed the Cenvat credit before the utilization and removal of goods, which should entitle them to the higher rate of duty drawback. The Commissioner (Appeals) and the Government both held that the reversal of Cenvat credit after the export of goods does not entitle the exporter to a higher rate of drawback. The Government emphasized that the conditions for claiming a higher rate of drawback must be satisfied at the time of export, and any subsequent reversal of Cenvat credit does not alter the eligibility for the higher rate. The Government cited relevant case laws to support this position and confirmed that the exporter was only eligible for the lower rate of drawback.

Conclusion:
The Government upheld the findings of the Commissioner (Appeals) that the exporter was eligible for the lower rate of duty drawback due to the availed Cenvat credit. The allegations of fraudulent claims and submission of forged certificates were found to be substantiated, leading to the imposition of penalties and a reduced redemption fine. The reversal of Cenvat credit post-export did not alter the eligibility for a higher rate of drawback. The impugned orders-in-appeal were modified to reflect these findings, and the revision applications were disposed of accordingly.