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TMI Blog2010 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... wback sanctioned was liable to recovery under Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 which contemplates recovery in case of erroneous and/or excess drawback, beyond the period of limitation prescribed under section 28 of the Act, when, admittedly, there is no case whatsoever against the appellant to the effect that there was any suppression and/or misdeclaration by the appellant? [c] Whether in the facts and circumstances of the case, the Tribunal erred in holding that the product exported by the appellant "heat resistant rubber tape" was not covered within the description "heat resistant rubber tension tape (strip rubber elastic)" when the Government of India had itself clarified on 10-12-2001 regarding a similar product "head resistant latex rubber thread" that drawback should be made available? [d] Whether in the facts and circumstances of the case, the Tribunal erred in coming to a conclusion that "heat resistant rubber tape" and "heat resistant rubber tension tape" had different uses and characteristics, without there being any evidence on record? [e] Whether in the facts and circumstances of the case, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant under cover of 18 shipping bills filed for export of goods during the period from 24-1-2000 to 31-3-2000, to submit that the test report made in respect of samples drawn subsequently, could not have been made applicable to the goods manufactured/exported during the period prior thereto. Inviting attention to the test report, it was submitted that the product in question elongates under heat and is treated as nothing but "heat resistant rubber tension tape". According to the learned advocate for the appellant, the Tribunal had erred in holding that the product exported by the appellant was "heat resistant rubber tape" whereas the description of the product mentioned in the Drawback Schedule was "heat resistant rubber tension tape" (strip rubber elastic) and that, therefore, drawback was not available in case of the appellant. The Tribunal found that in the facts of the case, the description of goods given in the shipping bills tallied with the goods actually exported and that it was not the case of the Department that there was willful mis-declaration of description. It is also found that there was a mistake on the part of the Department in having allowed drawbac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturer M/s. Ratan Lila & Co. Ltd. as confirmed in the affidavit dated 24-12-96 filed by the said manufacturer regarding list of plant and machinery. Thus, M/s. Ratan Lila & Co. Ltd. had misstated the fact of manufacture of Heat Resistant Rubber Elastic Tape. [iv] The manufacturer had not manufactured the goods in question at the given address. However, for the sake of paper transaction they had furnished documents in connivance with the exporter to avail drawback of customs and central excise portion, which was evident from the fact that Shri C.P. Gupta in his statement dated10-8-2000,21-9-2000and23-2-2001had admitted that they had not manufactured any goods, but had, only issued invoices. [v] The merchant exporter had failed to submit a certificate to the effect that no MODVAT has been availed of by the manufacturer of the goods. [vi] The exporter had not furnished Bank Realization Certificate in respect of export goods. [vii] The merchant exporter had in connivance with the manufacturer entered into only paper transaction showing that goods were procured from M/s. Ratan Lila & Co. Ltd. Shri V. M. Jain, Director of M/s. Dadri Inorganics Pvt. Ltd. in his statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Ratan Lila & Company Ltd., the alleged goods could not have been manufactured at their premises. The evidence on record revealed that the AR-4 in question had the address of 27, DISDC, Wazirpur, Industrial Area, Delhi, where no factory premises in the name and style of M/s. Ratan Lila & Company Ltd. was situated, but another factory in the name of M/s. Maharana Electronics engaged in the job work of plastic items was situated on the said premises which was owned by it since 1975. Even on the date of removal of the goods in question for export, no such factory in the name and style of M/s. Ratan Lila & Company Ltd. existed at the above-referred address. As per the endorsement made on the reverse of the shipping bills, the goods were subject to examination at the port of export, which meant that the goods stuffed for export were not examined by the proper officers of the Central Excise Department. It was, therefore, evident that the proper officers of the Central Excise Department had not visited the factory premises, but had signed the contents of the said AR-4 and had no knowledge as regards the contents of the cargo, viz., as to who had manufactured the same and from which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as per the Bank Realization Certificates provided by the appellant, the goods were "Head Resistant Rubber Tapes" whereas the entry of the duty drawback schedule refers to the goods as "Heat Resistant Rubber Tension Tape (Strip Rubber Elastic)". This means, the goods which had been exported in respect of which the appellant had availed the duty drawback were different than that described in the relevant entry of the Duty Drawback Schedule. The appellant had suppressed the material facts from the department that though the goods were not in conformity with the description given in the relevant in the Duty Drawback Schedule, they exported under the duty drawback and got Rs. 64,80,000/- towards duty drawback claim from the department." 6. The Tribunal, in the impugned order, has concurred with the findings recorded as well as the conclusions arrived at by the adjudicating authority, and has noticed that in the present case, the appellant-exporter was clearly aware that the description in the Drawback Schedule was "Heat Resistant Rubber Tension Tape" (Strip Elastic Rubber).The Tribunal was of the view that once the goods did not answer the description in the Drawback Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. In the light of the aforesaid findings recorded by it, the Tribunal was of the view that whatever was manufactured or purchased and supplied by M/s. Ratan Lila & Company Ltd. for export was a simple product which did not require any machinery and any technology as such, and even during the period of supply, M/s. Ratan Lila & Company Ltd. had shifted the premises just a few months back. Going by the statements of the persons involved and records, the preponderance of probability was that the said items were not manufactured but purchased and supplied. The Tribunal found that the description of the goods given in the shipping bills tallied with the goods actually exported and it was not the case of the department that there was mis-declaration of description. According to the Tribunal in fact, it was a mistake on the part of the department to have allowed the drawback in the case of earlier shipping bills since the description given in the shipping bills was "heat resistant rubber tape" whereas, the drawback schedule allowed the drawback for "heat resistant rubber tension tape". However, investigations by the department in respect of four shipping bills revealed that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods was certainly false. 11. Another contention advanced on behalf of the appellant is that in the light of the provisions of Section 28 of the Customs Act, the extended period of limitation could not have been invoked. However, the said contention does not merit acceptance, inasmuch as a perusal of the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995, ("the Drawback Rules") which have been framed in exercise of the powers conferred under Section 75 of the Act, it is apparent that the provisions regarding drawback are self-contained provisions. The Drawback Rules nowhere provide for any limitation for recovering any amount of drawback erroneously paid. In the circumstances, the contention that the extended period of limitation could not have been invoked is misconceived. Even otherwise, in light of the fact that the appellant had claimed drawback on the excise duty component without there being any supporting manufacture, the claim would squarely fall within the ambit of willful misstatement or suppression of fact as envisaged under the proviso to Section 28 of the Act. Hence, even if the provisions of Section 28 were applicable, the extended period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove, was not at any point of time manufacturing the goods in question and as such, it is apparent that the goods exported between the period 24-1-2000 to 31-3-2000 had also been exported under false drawback claim by showing the same to have been manufactured by the supporting manufacture, whereas the goods had actually been purchased from the open market without cover of proper central excise paid invoices. 15. Thus, the questions raised mainly arise out of the concurrent findings of fact recorded by the adjudicating authority as well as the Tribunal. The appellant has not been in a position to point out that the said findings are in any manner vitiated on the ground of perversity or that the same are contrary to the material on record. The only legal contention raised is that the extended period of limitation could not have been invoked in the light of the provisions of Section 28 of the Act, which, as discussed hereinabove, would not be applicable to the facts of the present case, inasmuch as the drawback sanctioned was liable to be recovered under Rule 16 of the Drawback Rules and as such, the provisions of Section 28 would not be applicable to the facts of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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