2013 (10) TMI 1250 - HC - Central Excise

Recovery of duty drawback for non realization of Foreign Exchange - Opportunity of being heard Production of Realization certificate against export of goods - Held that - The 3rd proviso to Regulation 9 of Foreign Exchange Management (Export of Goods & Services) Regulations, 2000, specifically provides that the Reserve Bank or subject to the directions issued by that Bank in this behalf, the authorized dealer, may, for the sufficient and reasonable cause shown, extend the period of 6 months or 15 months as the case may be - the petitioner is entitled to at least one opportunity to produce the realization certificate as well as the order of extension, if any, passed in favour of the petitioner in terms of proviso to Regulation 9 before the original authority order set aside matter remanded back to the original authority Decided in favour of Appellant

Summary

Issues:
Petitioner's failure to submit evidence of realization of export proceeds leading to a show-cause notice for recovery of drawback amount.
Petitioner's request for extension of time for producing Bank Realization Certificate due to buyer's reorganization.
Rejection of Revision Petition by respondent no. 2 leading to the writ petition.

Analysis:
The judgment pertains to a writ petition challenging the rejection of the petitioner's revision application by respondent no. 2. The petitioner, a Star Exporter House, exported goods but faced a show-cause notice for not submitting evidence of realizing export proceeds within the stipulated time frame as per regulations. The Assistant Commissioner confirmed the demand for drawback amount due to the lack of Bank Realization Certificate. The petitioner's appeal and revision petition were both unsuccessful, leading to the writ petition.

The petitioner contended that they have since obtained the Bank Realization Certificate and applied for an extension from the RBI as per the 3rd Proviso to Regulation 9. The petitioner requested a remand to the Original Authority to consider the newly obtained certificate and extension application. The respondent opposed this request, leading to a hearing before the court.

Upon review, the court found that the authorities had not considered the impact of the subsequently obtained Bank Realization Certificate. The court noted that once sale proceeds are realized and a certificate issued, it must be considered, especially as the petitioner applied for an extension from the RBI. The 3rd Proviso to Regulation 9 allows for extensions under certain conditions. Consequently, the court held that the petitioner should be given an opportunity to present the realization certificate and any extension order before the Original Authority.

As a result, the court set aside the impugned orders and remanded the matter to the Original Authority for fresh consideration, taking into account the realization certificate and any extension order provided by the petitioner. The writ petition was disposed of accordingly.