2022 (5) TMI 395 - HC - Customs

Duty Drawback - petitioner is unable to produce export realization within 6 months from the date of export - Rule 16A(4) of the Customs Central Exercise Duties and Service Tax Drawback Rules 1995 - HELD THAT - The petitioner has made exports during December 2007 ie. on 28.12.2007. The petitioner was granted duty drawback which is an export incentive under Section 75 of the Customs Act on 09.01.2008. No doubt the petitioner was required to produce export realization within 6 months from the date of export ie. on or before 28.06.2008. The fact remains that the petitioner has produced the documents to substantiate that there was indeed an export realization on 22.09.2009. A reading of the above provision seems to indicate that where the sale proceeds are realized by the exporter after the amount of drawback has been recovered from him under sub-rule(2) or sub-rule (3) and the exporter produces evidence about such realization within one year from the date of such recovery of the amount of drawback the amount of drawback so recovered shall be repaid by the Assistant Commissioner of Customs of Deputy Commissioner of Customs to the claimant - In this case the recovery has been made long after the export realization. Considering the same and considering the fact that there is indeed an export realization the case of the petitioner deserves a favorable disposal by the respondents. This writ petition is dsiposed off by remitting the case back to the 3rd respondent/the Assistant Commissioner of Customs to take note of Rule 16A(4) of the Customs Central Exercise Duties and Service Tax Drawback Rules 1995 and to dispose of the same on merits - petition disposed off.

Summary

Issues:
1. Duty drawback recovery and penalty imposition for delayed export realization.
2. Timeliness of filing appeal and subsequent writ petition.
3. Interpretation of Rule 16A(4) of the Customs, Central Exercise Duties and Service Tax Drawback Rules, 1995.

Issue 1: Duty Drawback Recovery and Penalty Imposition
The petitioner exported goods and claimed duty drawback under relevant rules. The duty drawback was granted subject to realizing export proceeds within 6 months. However, due to delayed payment from the foreign buyer, the export proceeds were realized after the deadline. The 3rd respondent issued a show cause notice for duty drawback recovery and penalty imposition. The petitioner, lacking evidence of export proceeds, received an adverse Order in Original. Despite obtaining a Bank Realization Certificate later, no appeal was filed in time. Subsequent appeals were dismissed, leading to the writ petition seeking repayment of the drawback amount and penalty waiver.

Issue 2: Timeliness of Filing Appeal and Writ Petition
The petitioner filed the writ petition in 2015 challenging orders from 2012. The Department issued demand notices, and the petitioner made payments without protest. The respondents argued the writ petition was time-barred due to delays in challenging the orders and making payments. The Senior Standing Counsel contended that the petitioner's actions indicated no grounds for interference at that stage, emphasizing the time lapse between the export in 2007 and the 2012 order.

Issue 3: Interpretation of Rule 16A(4)
The Court analyzed Rule 16A(4) of the Customs, Central Exercise Duties and Service Tax Drawback Rules, 1995. The rule pertains to the recovery of drawback where export proceeds are realized after recovery. It stipulates that if evidence of realization is produced within a year of recovery, the amount recovered shall be repaid. The Court noted the petitioner's delayed realization of export proceeds and the subsequent recovery, indicating a case for repayment according to the rule. Considering the export realization and the petitioner's compliance with the rule, the Court directed the case to be reconsidered by the 3rd respondent for a favorable disposal in line with Rule 16A(4).

In conclusion, the Court disposed of the writ petition by remitting the case to the 3rd respondent for reconsideration based on Rule 16A(4) and the Bank Realization Certificate provided by the petitioner. No costs were awarded, and the connected miscellaneous petition was closed.