2010 (4) TMI 96 - HC - Customs

Duty Drawback payback non receipt of foreign exchange within six months but realized within extended period repayment of duty drawback - Rule 16A - Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 - The provision is very clear that unless and until the sale proceeds are realized within the initial time period allowed under the Foreign Exchange Regulation Act, 1973 or any extended period, the drawback taken by the exporter cannot be recovered. This primary condition has not been fulfilled in the present case. Thus, there is no question of the respondents retaining the amount of drawback recovered from the petitioner. We may point out that this is not a case where the exporter is claiming return of the recovered drawback amount on the ground that it has subsequently realized the sale proceeds after the period provided for such sale proceeds had expired. The petitioner has, in fact, made the realization during the extended period. Therefore, it is not a case which would fall under Rule 16A(4), which pertains to cases where the sale proceeds are recovered from the exporters because the sale proceeds have not been received during the permissible period. return of duty drawback allowed decided in favor of assessee

Summary

Issues:
1. Duty drawback realization within stipulated period.
2. Refund of duty drawback amount and interest.
3. Interpretation of Rule 16A(4) of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995.
4. Validity of ex-post facto extension for realization of sale proceeds.

Analysis:

Issue 1: Duty Drawback Realization Within Stipulated Period
The petitioner, a garment exporter, claimed duty drawback under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, subject to realizing sale proceeds within a prescribed period. The exports in question were made during 1996-1997, and duty drawback was taken. However, the petitioner failed to realize the export proceeds within the stipulated time frame of six months.

Issue 2: Refund of Duty Drawback Amount and Interest
The petitioner, after paying back the duty drawback amount and interest to the respondents due to non-realization of sale proceeds, received an ex-post facto extension from the Reserve Bank of India. Subsequently, the petitioner requested a refund, which was denied based on Rule 16A(4) of the said Rules, requiring evidence of realization of sale proceeds within one year from the date of recovery of drawback.

Issue 3: Interpretation of Rule 16A(4)
The petitioner contended that Rule 16A(4) did not apply as the sale proceeds were realized within the extended period granted by the Reserve Bank of India. The Court held that Rule 16A(4) was not applicable since the primary condition of realizing sale proceeds within the allowed period was met, and the recovery of drawback was not justified.

Issue 4: Validity of Ex-Post Facto Extension
Despite the ex-post facto nature of the extension granted by the Reserve Bank of India for realizing sale proceeds, the Court ruled that it did not affect the petitioner's entitlement to the claimed duty drawback amount. The Court emphasized that as long as the sale proceeds were realized within the extended period, the recovery of drawback was unwarranted.

In conclusion, the Court set aside the impugned order, directing the respondents to return the recovered amount to the petitioner with interest. The petitioner was entitled to the refund as the sale proceeds were realized within the extended period, rendering Rule 16A(4) inapplicable.