2017 (4) TMI 1204 - HC - Customs

Maintainability of revision petition - production of proof for realisation of the export proceeds - Bank Realisation Certificate - Held that - it is evident that the Original Authority has not adverted to the particular Bank Realisation Certificate produced by the petitioner and considered the same, especially when the Appellate Authority has specifically directed to do so - confirmation of such order passed by the Original Authority in the further appeal and revision also cannot be sustained, unless the Original Authority consider the Bank Realisation Certificate produced by the petitioner and give a specific finding as to whether those Bank Realisation Certificates are containing the required particulars for allowing the duty drawback - matter is remitted back to the Original Authority viz., the second respondent herein for passing fresh order - petition allowed by way of remand.

Issues:
1. Recovery of drawback amount and penalty imposed on the petitioner.
2. Failure to produce evidence of realization of export proceeds.
3. Adjudication process and appellate review.
4. Acceptance of Bank Realisation Certificate as proof of export.
5. Compliance with Rule 16A of the Drawback Rules, 1995.

Analysis:
1. The petitioner, an exporter, was sanctioned a drawback amount of ?54,623 in relation to a Shipping Bill. Subsequently, the revenue initiated proceedings requiring the petitioner to provide evidence of export proceeds realization. Despite submitting documents like Bank Realisation Certificate and bank advice certificate, the Adjudicating Authority ordered recovery of the drawback amount and imposed a penalty. Appeals to higher authorities were unsuccessful, leading to the current challenge against the order dated 18.12.2013.

2. The respondents argued that under the Customs Act and Drawback Rules, failure to produce evidence of export proceeds realization warrants recovery of the drawback amount with interest. They contended that the petitioner's submission of a negative certificate from a Chartered Accountant did not fulfill the requirements, as it lacked essential details. It was also highlighted that the petitioner failed to demonstrate that the export sale proceeds were realized within the stipulated timeframe.

3. The Appellate Authority, in an earlier order, directed the Adjudicating Authority to verify the Bank Realisation Certificate provided by the petitioner and allow the duty drawback if all necessary particulars were present. However, the subsequent denovo proceedings by the Adjudicating Authority did not consider the Bank Realisation Certificate adequately, leading to the current challenge. The High Court noted the lack of discussion on the Certificate in the Original Authority's order, emphasizing the need for a specific finding on its contents.

4. The High Court observed that the Bank Realisation Certificate, although not in the prescribed format, was deemed acceptable by the Appellate Authority if it contained all required particulars. As the Revenue did not contest this order, the Court concluded that the Adjudicating Authority's failure to consider the Certificate as directed was a flaw in the decision-making process.

5. Ultimately, the High Court allowed the writ petition, setting aside the impugned order and remitting the matter back to the Original Authority for a fresh decision. The Court directed the Original Authority to consider the Bank Realisation Certificate in line with the Appellate Authority's order and provide the petitioner with a personal hearing. The Original Authority was instructed to issue a new order within four weeks, stressing the importance of evaluating the Certificate's contents for duty drawback eligibility.

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