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TMI Blog2000 (6) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. and M/s. Aruna Impex Pvt. Ltd. for manufacture and export of the goods on the terms and conditions that the export would be against the contract entered into by T.O.L. with their overseas buyers and the documents would be negotiated against the Letter of Credit opened by the foreign buyers in favour of T.O.L. The sale proceeds would be received by T.O.L. and the Duty Drawback was to be assigned by the said manufacturer/exporter in favour of T.O.L. M/s. Dugar Impex and M/s. Aruna Impex were to be paid the cost of manufacturing or selling price as mutually settled between them and T.O.L. 2.2. Thereafter, M/s. Dugar Impex and M/s. Aruna Impex exported 24 and 10 consignments respectively, of high valued garments to Russia, vide various shipping bills, and filed their Duty Drawback Claim for Rs. 95,87,115.66 and Rs. 37,27,098.75, on 30-9-1996 with the Assistant Commissioner of Customs. T.O.L. also approached the Customs Authorities, vide their various letters claiming to be the original claimant of Drawback in respect of the 34 shipping bills, and it was contended that the exports were made by M/s. Dugar Impex and M/s. Aruna Impex on behalf of T.O.L. who had a Letter of Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs during that period, might have been returned by the Postal Authorities. As regards the cancellation of Insurance Policy, it was submitted by them that the same was an illegal action and unilateral act on the part of the Insurance Company, which was not binding upon them. In any case, T.O.L. were pursuing the matter with the Insurance Company and fresh cheques in lieu of dishonoured cheques, were given to the Insurance Company, which only covered the transit insurance and as the goods had already reached its destination under the cover of Insurance Policy, the matter was only of academic interest. 2.5. T.O.L. contended before the Commissioner that Duty Drawback claim was to be received by them as an agent of M/s. Aruna Impex and M/s. Dugar Impex, which is permissible in terms of Rule 14 of the Drawback Rules, 1995. M/s. Aruna Impex and M/s. Dugar Impex had already authorised them to receive the admissible amount of drawback for which they had placed duly executed Power of Attorney on record. They, further, stressed before the Commissioner that Letter of Credit was in their name and the entire export proceeds had been received by their foreign buyers. All the necessary documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Insurance Policy was not justified inasmuch as Insurance Certificate was originally filed by the exporters with their drawback claim and the dispute as regards its cancellation was still pending with the Insurance Company. He, further, submitted that as per Rule 13(2)(iv), Insurance Certificate has to be produced, whenever necessary. There is no legal obligation on the part of the exporter to send the goods under the cover of Insurance. As regards the allegation of contravention of Rule 9(c), they submitted that the appellants were never called upon under the said Rule to place on record any requisite information. Further, drawing our attention to the provisions of Rule 11(3), Shri Mehta and Shri Samaddar argued that no deficiency memo was received by them within 15 days of the receipt of their claim and as such, the claim filed by them is deemed to be complete in all respects. Learned Advocates referred to the Honourable Supreme Court's judgment in the case of Collector of Customs, Calcutta v. Sun Industries reported in 1988 (35) E.L.T. 241 (S.C.) in support of their submission that in view of the categorical finding of the Commissioner that the export has taken place, M/s. T.O.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence to show that the goods are not as per declaration and prima facie there is, therefore, no evidence to consider confiscation of the goods as also for imposing penalty under Section 114(a) of the said Act. The fact that the party had exported goods of dubious quality made out of old and used rags at Calcutta as per DRI Calcutta's report raises an element of doubt with regard to the bona fides of the consignment exported from Nhava Sheva, but in absence of specific evidence establishing the goods exported to be similar to the consignment exported from Calcutta, the charges of confiscation of goods under Sec. 113 and penalty under Sec. 114 cannot stand. As such, it is seen from the foregoing that the factum of export by M/s. Aruna Impex and M/s. Dugar Impex and realisation of the export proceeds by M/s. T.O.L., has not been doubted by the adjudicating authority. The claim has been rejected on the ground that M/s. T.O.L. do not have any locus standi as an authorised agent, since enough documentary evidences have not been placed on record for establishing the same. We fail to appreciate the above reasoning of the adjudicating authority. Power of Attorney executed by M/s. Aruna I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants were never asked by the Revenue to produce any evidence or information in respect thereof. As such, the failure of the appellants to give such an information on its own, cannot be made the basis for alleging contravention of the said Rule inasmuch as information was to be given only at the behest of the Customs when asked for. As regards the contravention of Rule 13(2)(iv), it is seen that the same requires Insurance Certificate to be attached wherever necessary. In the present case, such a certificate was initially attached; it was only subsequently that the same was cancelled by the Insurance Company for which a dispute is still reported to be pending to the appellants. As per M/s. T.O.L, fresh cheques have been issued by them to the Insurance Company and the matter has been sorted out. In any case, this fact by itself is not sufficient to hold the contravention of Rule 13(2)(iv). Reference in this regard may be made to the Hon'ble Supreme Court's judgment in the case of Fertilizers Corporation of India v. State of Bihar reported in AIR-1988 (SC)-361, wherein it was observed while allowing tax rebate in terms of Section 15 of the Bihar Sales Tax Act in respect of delayed r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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