2016 (7) TMI 884 - HC - Customs

Recovery of duty drawback granted earlier - show cause notice was not served - export of goods - failure to submit Bank Realisation Certificate issued by the concerned Banks within the period allowed u/s.8 of the FEMA Act, read with Regulations, 2000 and Para 2.41 of the Export and Import Policy 2004-2009 and section 75 of the Customs Act, 1962 evidencing the realisation of sale proceeds in respect of the shipping bills under which the goods were exported. Held that - As already pointed out, since there is no proof to show that the show cause notice was served on the petitioner, all the orders which have been passed by all the respondents against the petitioner required to be interfered with. In the result, the writ petition is allowed and the impugned orders passed by the first respondent 17.06.2015 ; the order of the 2nd respondent / Appellate Authority dated 25.07.2013 and the order passed by the 3rd respondent dated 25.02.2013 are set aside and the matter is remanded back to the 3rd respondent for fresh consideration, who shall issue notice to the petitioner; call for the documents, call the petitioner for personal hearing during which the petitioner is entitled to place all documents to prove that the amounts have been realised within the time stipulated under the Statute and after taking into consideration the decision of the Central Government in the case of Modern Process Printers, pass fresh orders on merits and in accordance with law. - Decided partly in favor of assessee.

Summary

Issues:
1. Quashing of order demanding payment by exporter
2. Alleged lack of submission of Bank Realisation Certificate
3. Violation of principles of natural justice
4. Rejection of case despite Chartered Accountant Certificate
5. Proof of show cause notice delivery
6. Interference with orders against petitioner

Analysis:
1. The petitioner sought to quash an order demanding payment by the exporter, challenging the confirmation by multiple respondents. The issue stemmed from the non-submission of a Bank Realisation Certificate as required by various regulations and acts. The petitioner claimed no receipt of a show cause notice, leading to a violation of natural justice principles.

2. The petitioner argued that the required amounts were realized within the stipulated time, supported by a Chartered Accountant Certificate. Despite this, the authorities consistently rejected the case, emphasizing the absence of the Bank Realisation Certificate. The petitioner faced difficulties due to the passage of time, but the lack of evidence regarding the show cause notice delivery raised concerns about procedural fairness.

3. Citing a prior decision regarding beneficial schemes implementation, the petitioner contended that without proof of the show cause notice service, all orders against them should be overturned. The judgment allowed the writ petition, setting aside the impugned orders and remanding the matter for fresh consideration by the 3rd respondent. The 3rd respondent was directed to ensure the petitioner's opportunity to present evidence of timely realization and to issue a new decision in line with legal requirements.

4. In conclusion, the court emphasized the importance of procedural fairness and adherence to statutory provisions in adjudicating such matters. The judgment highlighted the necessity of providing parties with a proper opportunity to present their case and submit relevant documentation for consideration. The decision aimed to rectify the lack of clarity regarding the show cause notice delivery and to ensure a fair and just resolution for the petitioner within the legal framework.