2009 (9) TMI 359 - AT - Customs

Draw back- This appeal has been filed by the assessee against the order of adjudication dated 28-11-2005 passed by the learned Commissioner giving rise to the following consequences - (i) Drawback was ordered to be recovered from the appellant under Section 75A(2) of the Customs Act, 1962 read with Rule 16 of the Customs and Central excise Duties Drawback Rules, 1995. (ii) Interest on the amount recoverable under (i) above is payable under Section 28AA of the Customs Act, 1962 read with Rule 16 of the Customs and Central Excise duty DBK Rules. (iii) DEPB amount of Rs.62,585/- claimed is inadmissible. (iv) Liable to penalty of Rs.50,000/- under Section 114 of the Customs Act, 1962. Held that- the appellant failed to prove its good conduct of issuing parallel invoices to Delhi Chamber of Commerce. Intention of the appellant appears to enrich itself at the cost of Revenue in case of unnoticed transactions. When there was admission by the appellant that its past practice has resulted with 20 to 30% of reduction of value of export on examination of export by customs, levy of penalty of Rs.50,000/- is justified to prevent recurrence of such practice thus, appeal is partly allowed to the extent indicated above and Drawback/DEPB claim is to be recomputed in the light of aforesaid directions. Excess of Drawback/DEPB claim availed shall be recoverable with interest.

Summary

Issues Involved:
1. Recovery of drawback amount.
2. Interest on recoverable amount.
3. Inadmissibility of DEPB amount.
4. Liability to penalty under Section 114 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Recovery of Drawback Amount:
The adjudicating authority ordered the recovery of the drawback amount of Rs.8,61,350.81 from the appellant under Section 75A(2) of the Customs Act, 1962 read with Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995. The investigation revealed that the appellant had issued parallel invoices-one set with higher values for customs authorities and another with lower values for the Delhi Chamber of Commerce to obtain certificates of origin. The adjudicating authority concluded that the invoices submitted to the Delhi Chamber of Commerce, which showed lower values, should be the basis for the DEPB/Drawback claims. Therefore, the excess amount of drawback claimed was deemed inadmissible and recoverable.

2. Interest on Recoverable Amount:
Interest on the recoverable amount was deemed payable under Section 28AA of the Customs Act, 1962 read with Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995. The tribunal upheld the adjudicating authority's decision, confirming that the appellant must pay interest on the excess drawback amount claimed.

3. Inadmissibility of DEPB Amount:
The DEPB amount of Rs.62,585/- claimed by the appellant was found inadmissible. The investigation established that the appellant had used parallel invoices to inflate the value of goods for customs purposes while declaring lower values to the Delhi Chamber of Commerce. The adjudicating authority decided that the correct value for DEPB claims should be based on the invoices submitted to the Delhi Chamber of Commerce, which showed lower values, thus making the excess DEPB amount claimed inadmissible.

4. Liability to Penalty under Section 114 of the Customs Act, 1962:
A penalty of Rs.50,000/- was imposed on the appellant under Section 114 of the Customs Act, 1962. The tribunal found that the appellant's practice of issuing parallel invoices indicated an intention to enrich itself at the cost of the revenue. The appellant's past admissions that customs authorities had previously reduced the value of exported goods by 20% to 30% further justified the imposition of the penalty to prevent recurrence of such practices.

Conclusion:
The tribunal partly allowed the appeal, directing that the Drawback/DEPB claims be recomputed based on the lower values declared to the Delhi Chamber of Commerce. The excess amounts claimed were to be recovered with interest, and the penalty of Rs.50,000/- was upheld to deter future misconduct. The decision emphasized the importance of accurate and consistent invoicing practices in international trade and the consequences of attempting to defraud customs authorities.