2023 (4) TMI 931 - HC - Customs

Rejection of revision application - Refund of the duty drawback - opportunity of hearing not provided (audi alterem partem) - violation of principles of natural justice - writing off the unrealised bills in terms of the RBI Circular dated 12.03.2013 - it was also contended that the petitioner was not required to refund the duty drawback in terms of Rule 16A(5) of the Drawback Rules. Principles of natural justice - opportunity of hearing not provided - HELD THAT - There are no merit in the contention that the impugned order has been passed in violation of the principles of natural justice. The petitioner was afforded adequate opportunity to be heard. It is not disputed that the hearings were scheduled on 09.12.2019 and 30.12.2019. However, the appellant admittedly did not appear on either of the two hearings. Recovery of duty drawback - HELD THAT - The ground now sought to be urged was not urged before the Adjudicating Authority, the Appellate Authority, or the Revisional Authority. The order-in-appeal indicates that the petitioner had challenged the order-in-original dated 11.11.2016/23.11.2016 on three grounds. First, that the same was passed without affording further time to prepare a reply. Second, that the petitioner was entitled to write off unrealised export bills in terms of the RBI Circular dated 12.03.2013; and third, that the penalty cannot be imposed as the export proceeds were not realised for no fault on the part of the petitioner. It was not the petitioner s case that drawback is not an export incentive or that it is not refundable under Rule 16A(5) of the Drawback Rules. The Revision Application filed by the petitioner indicates that the principal ground urged by the petitioner was that in terms of Rule 16A(5) of the Drawback Rules, no recovery of drawback is to be effected. The petitioner also claimed that on a conjoint reading of Rule 16A(5) of the Drawback Rules and the RBI Circular dated 12.03.2013, the petitioner was entitled to write off unrealised portion of the drawback. On plain reading of sub-rule (5) of Rule 16A of the Drawback Rules, it is apparent that duty drawback paid to an exporter is not required to be recovered if three conditions are satisfied. First, that non-realisation of the sale proceeds is compensated by the Export Credit Guarantee Corporation of India Ltd. (ECGC) under an insurance cover; second, that the RBI writes off the requirement of realisation of sale proceeds on merits; and third, that the exporter produces certificates from the concerned Foreign Mission of India about the fact of non-recovery of sale proceeds from the buyer - In the present case, the statement of facts, as stated in the Revision Application filed by the petitioner, does not set out the factual details for claiming the benefit of Rule 16A(5) of the Drawback Rules. It is not disputed that the petitioner has not received compensation from the ECGC. Thus, Rule 16A(5) of the Drawback Rules is not applicable. There are no ground to interfere with the impugned order - petition dismissed.

Summary

Issues involved:
The judgment deals with the impugning of an order rejecting a revision application regarding the demand for refund of duty drawback amounting to Rs. 1,74,11,800 availed by the petitioner for exports during a specific period.

Details of the judgment:

1. The petitioner challenged an order rejecting their revision application regarding the demand for refund of duty drawback. The Customs Department issued show cause cum demand notices calling for recovery of the duty drawback availed by the petitioner for exports where foreign exchange remittance was not received. The Adjudicating Authority confirmed the demand and imposed a penalty. The petitioner did not respond adequately to the show cause notices.

2. The petitioner appealed the order-in-original, which was rejected by the Commissioner of Customs (Appeals). The petitioner then filed a revision application, which was dismissed by an ex parte order. The petitioner raised three grounds against the impugned order: violation of natural justice, entitlement to write off unrealised bills as per RBI Circular, and non-refundability of duty drawback under Drawback Rules.

3. The Court found no merit in the contention that the impugned order violated natural justice as the petitioner had opportunities to be heard. The petitioner's challenge to the recovery of duty drawback was not raised before the lower authorities. The RBI Circular relied upon by the petitioner did not absolve them from refunding duty drawback. The second proviso to Section 75 of the Customs Act makes the petitioner liable to pay duty drawback if consideration for exports is not received within the specified time.

4. Rule 16A(5) of the Drawback Rules exempts recovery of duty drawback under certain conditions, including compensation by ECGC and RBI write-off of sale proceeds. The petitioner did not meet the conditions specified in Rule 16A(5) as they did not receive compensation from ECGC. Therefore, the Court found no grounds to interfere with the impugned order and dismissed the petition.