2017 (3) TMI 703 - HC - Customs

Revocation of shipping bill - Duty Drawback - Held that - it would be only an empty formality to direct the petitioner to file such an appeal as the respondent himself based on their admitted stand can consider the case of the petitioner. Though it is contended in the impugned order that the petitioner has failed to produce proof of having realised the sale proceeds within the due date, the fact remains that the petitioner had in fact received the foreign exchange within the stipulated time - It is specifically admitted by the respondent, based on the Bank confirmation that the petitioner has fulfilled the export obligations. No doubt, the petitioner did not place the required materials at the time of personal hearing, for which also, the petitioner has stated some reason to condone such absence as it is contended that the SCN was not brought to the knowledge of the petitioner by the petitioner s staff who received the same - petition disposed off.

Summary

Issues:
1. Failure to produce proof of realization of foreign exchange within due date for export.
2. Non-attendance at personal hearing due to notice not brought to the petitioner's knowledge.
3. Challenge against the order in Original No.995/2012 demanding duty drawback repayment, penalty, and interest.
4. Petitioner's payment of a sum without prejudice to challenge the order.
5. Respondent's contention regarding lack of bank certificate for foreign exchange realization.
6. Verification of bank certificates by the concerned bank confirming authenticity.
7. Consideration of petitioner's representation dated 17.11.2014 for setting aside the impugned order.

Analysis:
1. The petitioner, a manufacturer and exporter of knitting garments, exported goods in December 2010 under four shipping bills, receiving foreign exchange within the stipulated time. However, due to inadvertence, the petitioner did not file the certificate of Export Realization issued by the bank, leading to a show cause notice and subsequent order demanding repayment of duty drawback, penalty, and interest for failure to produce proof of realization within the due date.
2. The petitioner, before filing a writ petition, made payments without prejudice to challenge the order, citing non-attendance at the personal hearing due to staff oversight in bringing the notice to their knowledge. The impugned order was challenged on the grounds of factual inaccuracies regarding the realization of foreign exchange within the stipulated time.
3. The respondent contended that the impugned order was rightly passed due to the absence of a bank certificate for foreign exchange realization. However, upon verification by the concerned bank, the authenticity of the certificates was confirmed, indicating that the petitioner had fulfilled the export obligations.
4. The court considered the admitted facts and circumstances, noting the petitioner's fulfillment of export obligations as confirmed by the bank, despite procedural lapses in producing materials during the personal hearing. The court directed the respondent to consider the petitioner's representation dated 17.11.2014 and pass appropriate orders within eight weeks, disposing of the writ petition without costs.

This detailed analysis highlights the issues surrounding the failure to produce proof of foreign exchange realization, procedural oversights in attending the personal hearing, challenges against the impugned order, and the subsequent direction for the respondent to reconsider the representation based on verified bank certificates.