2023 (11) TMI 112 - AT - Customs

Recovery of Duty Drawback - failure to produce certificate evidencing the realization of sale proceeds within the period of 12 months from the date of export in terms of Notification No.FEMA-176/2008-RB dated 23.07.2008 - HELD THAT - There are no merits in the appeal because the fact that proof that entire amount which was to be realized against the exports was submitted to the Commissioner (Appeal). Commissioner (Appeals) while passing the impugned order has admitted the BRC s submitted after due verification. Approximately, out to the six BRCs four were within the time limit prescribed, and two were subsequent to that. However, there is no doubt that entire sale proceeds have been released in full neither the appeal memo says so that this amount is not released the only reason for filing this appeal is that the amount was released beyond the period prescribed. Once, the fact of realization is not disputed there cannot be any reason for denial of substantiated benefit to the appellant for this delay which is nothing but a procedural laps. It is settled position in law that such procedural lapses are technical violation should not come in the way for extending the substantial benefit to the appellant. Reliance is placed on the decision of Hon ble Allahabad High Court in the case of M/S GLOBAL SUGAR LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR 2016 (4) TMI 797 - ALLAHABAD HIGH COURT where it was held that Rule 57T of the Rules is only procedural in nature. We are also of the opinion, that Modvat credit cannot be denied on a technical ground that the procedure for availing Modvat credit was not followed at the material moment of time. There are no merits in the appeal - appeal dismissed.

Summary

Issues involved:
The issues involved in the judgment are the realization of sale proceeds in respect of a shipping bill, the failure to produce a certificate evidencing the realization of sale proceeds within the prescribed time limit, and the application for stay by the revenue.

Realization of Sale Proceeds:
The appellant exported goods under a shipping bill and the drawback amount was paid. The appellant failed to produce a certificate evidencing the realization of sale proceeds within the prescribed time limit. A show cause notice was issued for the demand of the duty drawback amount. The Commissioner (Appeals) allowed the appeal stating that although the realization of money was beyond the prescribed time limit, the appellant had now realized the entire sale proceeds, leading to the dropping of the demand.

Application for Stay:
The revenue had filed an application for stay, which was dismissed as the issue was narrow and posted for final hearing. The Authorized Representative for the revenue reiterated the grounds taken in the appeal memo.

Judicial Precedents and Interpretations:
The judgment referred to various judicial precedents emphasizing that procedural lapses should not hinder the substantial benefit to the appellant. The decision highlighted that technical violations should not impede the extension of benefits to the appellant, especially when the substantive fact of export has been established. The judgment cited cases where procedural infractions were condoned in favor of actual export having been established, emphasizing that substantive benefits cannot be denied for procedural lapses.

Decision:
The appeal filed by the revenue was dismissed based on the findings that the entire sale proceeds had been realized, even though there was a delay in realization beyond the prescribed time limit. The judgment relied on legal principles and judicial precedents to support the dismissal of the appeal.

Separate Judgement by the Judge:
No separate judgment was delivered by the judge in this case.