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TMI Blog2006 (8) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 113(h) (ii) of the Act and has imposed a fine of Rs. 1.25 crores as the goods are not available for confiscation. A penalty of over Rs. one crore has also been imposed on the party under Section 114(iii) of the Act. There is a separate penalty of Rs. 1.00 lath on M/s. K.B.S. Manian Bros. P. Ltd. [CHA for the above exporters] under the same provision of law. The present applications are for waiver of predeposit and stay of recovery in respect of the amounts demanded by the Commissioner. 2. After examining the records and hearing both sides, we find that M/s. K.V.S. Exports Pvt. Ltd. had exported stitched garments under claim of drawback during the period 1998 to 2001. After completing the formalities, they got the benefit of drawb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 16A of the Drawback Rules. In any case, according to learned counsel, it was irregular on the part of the Department to have issued the show-cause notice for recovery of drawback amount after obtaining documentary evidence of realization of sale proceeds. The procedure under Rule 16A was not followed for such recovery. In this connection, learned counsel relies on the Tribunal s decision in Indo Export House v. Commissioner of Central Excise - 2004 (168) E.L.T. 142 (Tri.-Del.) wherein, in a case of export under drawback claim, it was found that any demand for recovery of drawback amount could be raised only where the export proceeds were not realized. In that case, the exporters banker had certified receipt of payments. Learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate delay on the part of the exporters still remains unexplained. It is further submitted, even after completion of exports, it is open to the Department to invoke Section 113 of the Customs Act for penalizing the erring exporters and their abettors. In this connection, reliance is placed on a judgment of the Calcutta High Court (Full Bench) in the case of Euresian Equipment and Chemicals Ltd. and Others v. Collector of Customs and Others - 1980 (6) E.L.T. 38 (Cal.) and another judgment of the same Court (Single Bench) in the case of Rajan Ghoshal v. Union of India - 2002 (148) E.L.T. 3 (Cal.). It is also pointed out that the Revenue s view point on the substantive issue is also supported by the judgment of the High Court in Rajan Ghoshal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The show-cause notice was issued only thereafter. Immediately after receipt of the show-cause notice, the party responded by producing evidence of realization of sale proceeds. Nevertheless, this evidence was ignored and learned Commissioner proceeded to confirm the demand of drawback amount. As regards any demand on the ground of over-invoicing, we have not found any split-up in the impugned order, from which we could have ascertained the demand of drawback attributable to over-invoicing. Learned SDR has also not been able to provide any worksheet in this regard. As regards penalties, learned SDR has been able to make a good case by submitting that Section 113 of the Customs Act is invocable against an exporter even after completion of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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