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2023 (5) TMI 1135 - AT - CustomsFraudulent availment of benefit of Duty Drawback - wilful misstatement of the particulars declared in the shipping bills - order for confiscation of the goods already exported under draw back u/s 113 (i) of the Customs Act - diversion of goods (exported) to third country or not - levy of penalty u/s 114 (iii) of the Act - Extended period of limitation - HELD THAT - The show cause notice has been issued after more than 13 years from 27.04.2003, when the Customs has closed the matter by writing to Punjab National Bank, to defreeze the bank account of the appellant. Thus, the extended period is not available to Revenue, and this ground is decided in favour of the appellant and against the Revenue. The show cause notice is based on un-substantiated and vague facts, which have no legs to stand. Admittedly, the appellant have received the payment for the goods exported, which is duly supported by the BRCs issued and re-certified after verification by the Punjab National Bank. Further, there is no evidence brought on record by the Revenue that the appellant have returned any remittance received on account of exports to the buyer located in the foreign country. Further, Revenue have not brought on record any evidence of diversion of goods to any third country - Admittedly, the goods have been exported by air from India to Russia and thus, chances to diversion to third country is highly impossible, without the goods first reaching Russia. The impugned order is set aside - appeal allowed.
Issues Involved:
1. Limitation period for issuing the show cause notice. 2. Validity of the demand for duty drawback. 3. Confiscation of goods and imposition of penalties. 4. Alleged violation of RBI and DGFT circulars. 5. Evidence of actual export and receipt of payment. Summary: Limitation Period for Issuing the Show Cause Notice: 18. The show cause notice was issued after more than 13 years from 27.04.2003, when Customs closed the matter by writing to Punjab National Bank to defreeze the appellant's bank account. The extended period is not available to Revenue, and this ground is decided in favor of the appellant and against the Revenue. Validity of the Demand for Duty Drawback:19. The show cause notice is based on unsubstantiated and vague facts. The appellant received payment for the goods exported, supported by the BRCs issued and re-certified after verification by Punjab National Bank. No evidence was brought by Revenue that the appellant returned any remittance received on account of exports to the buyer in the foreign country. Additionally, there is no evidence of diversion of goods to any third country. Confiscation of Goods and Imposition of Penalties:11. It appeared to Revenue that the appellant willfully misstated the particulars declared in the shipping bills to fraudulently avail the benefit of drawback. Revenue alleged that the goods ostensibly exported did not reach the declared consignee in Russia, and the money received was not relatable to the exports. Consequently, the drawback taken by the appellant was deemed never allowed and was required to be returned along with interest under Section 75 read with Section 75(A) of the Act, and Rule 16 (A) of the Customs and Central Excise Drawback Rules, 1995. Alleged Violation of RBI and DGFT Circulars:10. The appellant allegedly violated RBI Circular A.D. (M.A) No. 30 dated 28th September 1993 and RBI AP: (DIR series) Circular No.12 dated 9th September 2000. The goods declared for export before Indian Customs did not reach Russia, leading to the contravention of Section 11 (1) of the Foreign Trade (Development and Regulation) Act 1992, read with para-4.17 of the Exim Policy, 1997-2002, and para-2.15 of Exim Policy 2002-2007. This made such exports a violation of Section 11 of the Customs Act, 1962. Evidence of Actual Export and Receipt of Payment:16. The appellant's counsel argued that the show cause notice was issued without any adverse material on record, based on assumptions and presumptions. The appellant had exported goods by air from India to Russia, and Revenue did not provide evidence of diversion to any third country or remittance back to the consignee/buyer in Russia. The appellant's contentions were supported by bank statements and export documents, which are external evidence not created by the appellant. 20. The appeal is allowed, and the impugned order is set aside. The appellant is entitled to consequential benefits in accordance with the law. [Order pronounced on 25.05.2023]
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