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TMI Blog2012 (11) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ens Vide Shipping Bill No. 5278102 dated 28-12-2005 for which they received Drawback of duty. However, as per XOS (statement given by the Reserve Bank of India regarding non-realization of foreign exchange for exports) no foreign exchange had been remitted for the consignment. As such, a show cause cum demand notice was issued on 28-1-2008 with subsequent reminders to Respondent for the recovery of Rs. 1,56,727/- along with interest accrued thereon. 2.1 In the course of the personal hearing that followed the exporter's representation, it was submitted that they had not yet got the Bank Realisation Certificate and they had received a letter dated 23-2-2009 from the Kanataka Bank Ltd., Park Street Branch, Kolkata wherein it was informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alized then the Drawback amount sanctioned earlier on this count has to be realized. Para (2) of Rule 16A states that the exporter has to furnish evidence of realization within the time stipulated by the Foreign Exchange Management Act, 1999 or any extension of the said period given by the Reserve Bank of India. Section 7 of the Foreign Exchange Management Act, 1999 read with Sections 7 & 9 ibid clearly state that whenever an exporter exports goods, irrespective of whether he claims any export benefit like Drawback or not, he has to ensure to the satisfaction of the Reserve Bank of India that he has realized the foreign exchange through his export proceeds. Therefore, the essential requirement for availing Drawback is the repatriation of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962 and thus is outside the purview of the aforesaid para mentioned of the Handbook of Procedure. The para 2.25.2 relates to payment through General Insurance to cover for transit loss and is in no way related to the issue as to whether ECGC reimbursements can be treated as repatriation of foreign exchange. 5. In response to the Show Cause Notice dated 20-5-2010 issued under Section 129DD of the Customs Act, 1962, the Respondent herein has made the following cross objections/submissions vide a letter received on 10-12-2010. 5.1 That under Rule 17 of the Customs, Central Duties and Service Tax Drawback [Rules,] 1995 the Central Government is empowered to allow Drawback if the Central Government is satisfied that in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for benefits under FTP". Hence in Para (ii) of Grounds of Appeal where Assistant Commissioner (Drawback) mentioned that Drawback is not scheme coming within the purview of the FTP is insignificant and cannot be considered because the policy provision had cannot be considered because the policy provision had given the specific guideline that even the payment realized through ECGC that would be treated as payment realized on account of exports under the various export promotion schemes. 5.5 That the date of occurrence/transaction was on 30-12-2005 (i.e. when export was physically made) and the illustrated C.B.E. & C. Circular was issued on 23-3-2010 and the same was issued not by giving retrospective effect but deemed to be based on pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent exporting party term the same as proper payment realized on account of export under various export promotion scheme including Drawback. 9. Before proceeding further Government first peruses the relevant statutory provisions of Rule 16A of above referred relevant Drawback Rules, 1995 which is as under :- "16A. Recovery of amount of Drawback where export proceeds not realized - (1) Where an amount of drawback has been paid to an exporter or a person authorized by him (hereinafter referred to as the claimant) but the sale proceeds in respect of such export goods have not been realized by or behalf of the exporter in India within the period allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), including an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above Order-in-Appeal the Commissioner (Appeals) had held that the export proceeds received from ECGC as clarified in para 2.25.1 and 2.25.2 of the Handbook of Procedure of the relevant Foreign Trade policy period are to be treated as export proceed for the purpose of Drawback Rules. Here Government finds force in the ground of the Applicant Commissioner that Drawback is not a scheme coming within a purview of the Foreign Trade (Development and Regulation) Act, 1992, but is governed under the Customs Act, 1962. This stand of the Applicant Commissioner has further been strengthened by C.B.E. & C. Customs Circular No. 7/2010-Cus., dated 23-3-2010 even if this has been subsequently issued because there has never been any circular or provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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