9911796707
TMI Blog2012 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Gemini Fashions (P) Ltd. (GFPL) 4,40,455/- + 9,56,981/- 5,00,000/- 4 M/s. Gemini Dyeing & Printing Mills Ltd. (GDPML) 53,618/- 55,000/- 2.1 The issue involved in all these cases is that GTI (100% EOU) have despatched their finished product to other units of their group companies i.e. GFPL, RVC, GDMPL, in the DTA and claimed duty drawback illegally; GTI (100% EOU) have despatched RMG for shipment to the above for export without permission from Customs and evaded duty; GTI (100% EOU) have sent semi-finished RMG to other units in DTA and these units have exported after finishing the same and claimed duty drawback; (GTI 100% EOU) have sent duty free raw materials to DTA units which are not returned to GTI (100% EOU) and thereby evaded duty of Rs. 3,04,788/- and leading to confiscation of 1329 nos. of semi-finished readymade garments (RMG). The matter was adjudicated after giving opportunity to all the concerned and thereafter demanded duty amounting to Rs. 3,04,788/- from GTI (100% EOU) in terms of Section 72 of the Customs Act, 1962 and imposed penalty under Section 114; demanded duty drawback of Rs. 4,40,455/- as per provisions of sub-section (2) of Section 75A; demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re proposed to be recovered by only requiring, to Show-Cause for such purposal. In this connection, certain internal clarifications were given by the Deputy Commissioner of Customs to the then Adjudicating Authority viz. Joint Commissioner of Customs vide letter dated 18-4-2000 itself would establish that the basic and core allegation are in correct/baseless. 4.2 it is also the further factual position that it is only thereafter vide letter dated 12-4-2002, the alleged addendum to the said show cause notice read with the corrigendum dated 19-9-2001 had been communicated and further one more addendum to the said show cause notice was issued vide subsequent letter dated 2-5-2002 to the applicant herein, wherein for the first time the applicant herein was required to show cause as to why the drawback amount referred to hereinabove, should not be recovered thereto. This is because, the original show cause notice and the corrigendum issued had only required the applicant herein to show cause as to why penalty should not be imposed thereto. Thus, 2-5-2002 should be the relevant date for determining time-bar/limitation issue. 4.3 The assumptions made for invoking extended peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after the expiry of the said period of two months till the date of recovery of such drawback." In this context, it is submitted that the provisions of said Section 75A(2) has been substituted w.e.f. 11-5-2007 by Section 98 of the Finance Act, which reads as under : (i.e. after its substitution on 11-5-2007] :- "(2) Where any drawback has been paid to the claimant erroneously or it becomes otherwise recoverable under this Act or the rules made thereunder, the clamant shall, within a period of two months from the date of demand, pay in addition to the said amount of drawback, interest at the rate fixed under Section 28AB and the amount of interest shall be calculated for the period beginning from the date of payment of such drawback to the claimant till the date of recovery of such drawback." 4.7 In fact, neither the show cause notice nor the said orders passed has alleged or established that the drawback involved herein has been paid erroneously thereto. Thus there was no statutory authority for recovering any such amount of drawback which is otherwise recoverable under the Customs Act or the Rules framed thereunder till 11-5-2007 and since the period involved herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods are not returned to GTI is prima facie baseless and without any evidence. vii. It is respectfully submitted that there is no export obligation backlog on the part of GTI (EOU) in respect of duty free inputs received in the EOU. Such said inputs have been duly accounted by use and exports. Further all the different recorded statements as relied upon in the said Show Cause Notice invariably confirms that all the goods (materials) received (from the respective applicants) were sent back after required job-works. 4.12 That mere movement of materials or undertaking certain processes like finishing, washing, cutting etc. or merely sending certain goods under delivery challans for shipment purposes and consolidation could not have resulted in denial of the benefit of drawback thereto. The applicant have replied and denied all the allegations made in the Show Cause Notice including that no duty free input were wrongly used/consumed in any job-works. 4.13 The applicant relied upon the following case laws in support of their case : (i) L.T. Karle & Co. v. C.C. reported in 2004 (172) E.L.T. 80 (ii) 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection with the above Show Cause Notice should be taken as a fresh Show Cause Notice and if computed from last addendum dated 2-5-2002 the issued Show Cause Notice is "Time barred". Here, Government does not find any legal backing or rationale behind this plea of the applicant. If any further letter/communication is treated as having made all the previous notices as redundant, then the very nomenclature/Identity/purpose and status of existence of the term "Addendum"/"Corrigendum" would stand as extinct/deleted from all the judicial/semi-judicial forums. Therefore such a proposition can neither be taken as logical nor proper. Government, therefore takes up the very initial Show Cause Notice or issued date as the relevant date and rest of addendums/corrigendum letter as precise details clearly pointing out the relevant data/limits/scopes of this case proceedings which have already stood commenced. The Show Cause Notice dated 18-7-2001 was issued within extended time of 5 years and as such Show Cause Notice can not be treated as time barred. Government therefore rejects this "time-bar" plea of the applicants and proceed to analyse the merits of the case as per the grounds/submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by questioning the "erroneous" status of impugned demanded Drawback amounts. 10. In a situation as above, Government notes and finds from entire case proceedings/records that there were indeed specific checkings and investigations by the departmental officers under proper authority of law. Further the lower authorities have made allegations and conclusions which are based on details/datas of the legally admissible documents/records as named therein. Although the applicant is alleging all the proceedings as mere assumption and pre-sumption only but what the Government notes herein is that it is the applicants which are assuming and putting forth their own interpretation of statutory provisions and taking their contraventions as mere condonable procedural lapse. The applicants herein neither produced any documentary or otherwise evidence of legally admissible nature nor were able to establish any part of investigation as false or wrong in law. It is due to these facts that the Government finds orders of the lower authorities as carrying weight and well within the authority of law. Further, here Government wants to impress upon that the involved units i.e. 100% EOU and DTA unit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
