2017 (9) TMI 402 - HC - Customs

Duty Drawback - export incentive - export of consignment of power loom ready made garments - principles of natural justice - Held that - original authority had no opportunity to examine as to the correctness of the stand taken by the petitioner that the bank certificate of export and realisation has been obtained by them. Since it was an ex parte proceedings, the appellate and the revisional authority did not embark upon such exercise and they dismissed the appeal/revision on technical grounds. Thus, the petitioner having come into possession of the bank certificate of export and realisation should not be nonsuited on technical grounds and therefore, this Court is inclined to issue necessary directions in this regard - matter is remanded to the 3rd respondent for fresh consideration, who shall take into consideration the bank certificate of export and realisation dated 13.12.1997 - appeal allowed by way of remand.

Summary

Issues:
1. Claim for drawback on exported goods
2. Recovery of drawback due to delay in obtaining bank certificate
3. Dismissal of appeal on technical grounds
4. Nonsuiting of petitioner without proper examination of evidence

Analysis:

Claim for drawback on exported goods:
The petitioner, a Government of India Company, exported power loom ready-made garments and claimed a drawback of &8377; 63,341 as per the Drawback Schedule. The amount was sanctioned and paid. However, a show cause notice was later issued questioning the grant of drawback due to a delay in obtaining the bank certificate of export and realization of sales proceeds. Despite the petitioner having realized the sale proceeds, a demand was confirmed against them.

Recovery of drawback due to delay in obtaining bank certificate:
The petitioner faced challenges in responding to the show cause notice as their premises had been shifted, leading to a lack of notice about the proceedings. Despite submitting the bank certificate of export and realization after receiving the order, the appeal was dismissed due to the expiration of the limitation period. The appellate and revisional authorities did not examine the evidence presented, resulting in the dismissal of the appeal on technical grounds.

Dismissal of appeal on technical grounds:
The Commissioner [Appeals] upheld the dismissal of the appeal due to the limitation period expiring, as they lacked the power to extend it. This decision was affirmed by the 1st respondent, leading to the petitioner being nonsuited on technical grounds without a proper examination of the bank certificate of export and realization.

Nonsuiting of petitioner without proper examination of evidence:
The court found that the original authority did not have the opportunity to verify the bank certificate of export and realization due to the ex parte nature of the proceedings. As a result, the appellate and revisional authorities did not consider this evidence, leading to the dismissal of the appeal on technical grounds. The court decided to set aside the impugned order, remand the matter to the 3rd respondent for fresh consideration, and directed a thorough examination of the bank certificate. If the petitioner had indeed realized the sale proceeds, appropriate orders were to be passed within three months, emphasizing the importance of not nonsuiting the petitioner on technical grounds without proper examination of evidence.