2012 (11) TMI 530 - CGOVT - Customs

Drawback benefit - export realization in foreign exchange Held that - Where Drawback has been paid but the sale proceeds have not been realized in respect of such exports with stipulated time period, such Drawback is to be recovered in terms of sub-rule (2) - RBI master Circular No. 6/2010-11 stipulate as under The claims settled in Rupees by ECGC and private insurance companies regulated by IRDA should not be constituted as export realization in foreign exchange - Respondent exporter herein is not entitle to any Drawback benefit and the demand confirmed by the original authority under above mentioned Rule 16A(2) of the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995 is legal & proper

Summary

Issues:
1. Recovery of duty drawback due to non-realization of foreign exchange for exports.
2. Interpretation of relevant provisions of Customs Act, 1962 and Drawback Rules, 1995.
3. Consideration of reimbursement from Export Credit and Guarantee Corporation (ECGC) as equivalent to realization of export proceeds.
4. Application of Rule 17 for relaxation of provisions.
5. Adherence to statutory provisions and circulars in determining entitlement to duty drawback.

Issue 1: Recovery of duty drawback due to non-realization of foreign exchange for exports
The case involved an exporter who received duty drawback for exporting pens but did not remit foreign exchange for the consignment. The Assistant Commissioner confirmed the duty drawback recovery under Rule 16A(2) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. The jurisdictional Commissioner of Customs (Appeals) allowed the exporter's appeal, leading to a revision application by the Central Government. The Government emphasized the requirement of repatriation of foreign exchange for availing duty drawback, stating that receipt from ECGC is not repatriation but reimbursement. The exporter's failure to comply with repatriation conditions led to the duty drawback recovery.

Issue 2: Interpretation of relevant provisions of Customs Act, 1962 and Drawback Rules, 1995
The Government analyzed Rule 16A of the Drawback Rules, emphasizing the need for realization of export proceeds within the specified time frame. The Commissioner (Appeals) considered ECGC reimbursements as export proceeds, but the Government highlighted that duty drawback falls under the Customs Act, not the Foreign Trade Policy. Referring to circulars and statutory provisions, the Government concluded that ECGC reimbursements do not equate to foreign exchange realization under FEMA, 1999. The reliance on Rule 17 for relaxation was dismissed due to lack of evidence of obtaining necessary relaxation.

Issue 3: Consideration of reimbursement from ECGC as equivalent to realization of export proceeds
The dispute centered on whether ECGC reimbursements constituted proper payment for export under various schemes, including duty drawback. The Government disagreed with the exporter's stance, emphasizing that ECGC reimbursements do not fulfill the repatriation requirement for duty drawback entitlement. The Government's decision was based on the strict interpretation of statutory provisions and circulars, aligning with Supreme Court precedents on adherence to applicable provisions.

Issue 4: Application of Rule 17 for relaxation of provisions
The exporter invoked Rule 17 for relaxation, but the Government found no record of the exporter obtaining necessary relaxation from designated agencies. Consequently, the Government rejected the exporter's cross objections and upheld the duty drawback recovery under Rule 16A(2).

Issue 5: Adherence to statutory provisions and circulars in determining entitlement to duty drawback
The Government underscored the importance of adhering to statutory provisions and circulars in determining duty drawback entitlement. Citing Supreme Court precedents, the Government concluded that the exporter was not entitled to duty drawback benefits due to non-realization of export proceeds. The impugned Order-in-Appeal was set aside, and the original order for duty drawback recovery was reinstated.

The judgment highlights the significance of complying with repatriation requirements for duty drawback entitlement, the interpretation of relevant provisions, and the strict adherence to statutory provisions in determining duty drawback benefits. The case underscores the need for exporters to fulfill repatriation conditions and obtain necessary relaxations as per the Customs Act and Drawback Rules to avoid duty drawback recovery due to non-realization of export proceeds.