9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (4) TMI 932 - HC - CustomsRejection of revision application - Refund of the duty drawback - opportunity of hearing not provided (audi alterem partem) - violation of principles of natural justice - writing off the unrealised bills in terms of the RBI Circular dated 12.03.2013 - it was also contended that the petitioner was not required to refund the duty drawback in terms of Rule 16A(5) of the Drawback Rules. Principles of natural justice - opportunity of hearing not provided - HELD THAT - There are no merit in the contention that the impugned order in original was passed in violation of the principles of natural justice. The petitioner was afforded adequate opportunity to be heard. It is not disputed that the hearings were scheduled on 22.05.2016, 25.07.2016 and 28.08.2016. However, the appellant had not appeared on either of the hearings. Recovery of duty drawback - HELD THAT - The ground now sought to be urged was not urged before the Adjudicating Authority, the Appellate Authority, or the Revisional Authority. The order-in-appeal indicates that the petitioner had challenged the order-in-original dated 17.08.2016 on three grounds. First, that the same was passed in violation of the principles of natural justice as the petitioner was not afforded any opportunity of being heard. Second, that the petitioner had received remittances against most of the Shipping Bills in question but the reconciliation of BRCs with the Shipping Bills was taking some time. Third that receipts were adequately protected by the cover provided by Export Credit Guarantee and the duty drawback was not recoverable in terms of Rule 16A(5) of the Drawback Rules. It was not the petitioner s case that drawback is not an export incentive. The Revision Application filed by the petitioner indicates that the principal ground urged by the petitioner was in terms of Rule 16A(5) of the Drawback Rules, duty drawback is not available. The petitioner also claimed that on a conjoint reading of Rule 16A(5) of the Drawback Rules and the RBI Circular dated 12.03.2013, the petitioner was entitled to write off unrealised portion of the drawback. On plain reading of sub-rule (5) of Rule 16A of the Drawback Rules, it is apparent that duty drawback paid to an exporter is not required to be recovered if three conditions are satisfied. First, that non-realisation of the sale proceeds is compensated by the Export Credit Guarantee Corporation of India Ltd. (ECGC) under an insurance cover; second, that the RBI writes off the requirement of realisation of sale proceeds on merits; and third, that the exporter produces certificates from the concerned Foreign Mission of India about the fact of non-recovery of sale proceeds from the buyer - In the present case, the statement of facts, as stated in the Revision Application filed by the petitioner, does not set out the factual details for claiming the benefit of Rule 16A(5) of the Drawback Rules. It is not disputed that the petitioner has not received compensation from the ECGC. Thus, Rule 16A(5) of the Drawback Rules is not applicable. There are no ground to interfere with the impugned order - petition dismissed.
Issues involved:
The issues involved in the judgment are the demand for refund of duty drawback, violation of principles of natural justice, and the applicability of Rule 16A(5) of the Drawback Rules. Demand for Refund of Duty Drawback: The petitioner exported goods and availed duty drawback, but did not receive export proceeds for some shipments. A show cause notice was issued, and the Adjudicating Authority confirmed the demand for refund along with interest and imposed a penalty. The petitioner claimed they did not receive notices for personal hearings. The appeal before the Commissioner of Customs (Appeals) was rejected, leading to a revision application that was dismissed by the Revisional Authority. Violation of Principles of Natural Justice: The petitioner contended that the order-in-original was passed in violation of natural justice as they were not heard. However, it was found that the petitioner had opportunities for hearings but did not appear. The Appellate Authority rejected the claim that the petitioner did not receive notices for personal hearings, considering it a weak plea. Applicability of Rule 16A(5) of the Drawback Rules: The petitioner argued that they were not required to refund duty drawback under Rule 16A(5) of the Drawback Rules. The Court examined this rule, which states that duty drawback need not be recovered if specific conditions are met, including compensation from the Export Credit Guarantee Corporation of India Ltd. (ECGC). As the petitioner did not receive compensation from ECGC, Rule 16A(5) was deemed inapplicable. Conclusion: The Court dismissed the petition, finding no merit in the contention that the impugned order violated natural justice. Additionally, the Court held that the RBI Circular cited by the petitioner did not absolve them from refunding duty drawback. It was established that the petitioner was liable to pay the duty drawback as per the Customs Act provisions. The Court also clarified that the conditions of Rule 16A(5) were not met in this case, leading to the dismissal of the petition.
|
