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TMI Blog2016 (7) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ted period of three months. The enabling statutory provision viz. Rule 16A (4) for refund of drawback recovered will undisputedly be subject to provisions of the said Rule. Therefore, the Commissioner (Appeals) has clearly erred in holding the refund as admissible once the that Bank Realization certificates were produced by the exporter within a period of one year from the date of recovery of drawback. Government finds merit in the observation of the original authority that the Order No. 457/2012 dated 15.05.2012 for recovery of drawback amount had become final as it had been accepted by the applicant who did not challenge it any appellate forum and paid the confirmed dues. Therefore, Government holds that question of any refund of duty paid pursuant to such an order which has attained finality does not arise. Government holds that no refund is admissible under Rule 16A (4) of the Customs, Central Excise and Service Tax Drawback Rules, 1995 and the impugned Order-in Appeal is thus set aside as not being legal and proper. - Decided in favor of revenue. - F.No.380/62/DBK/14-RA - ORDER NO. 32/2016-CUS - Dated:- 22-3-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) who set aside the impugned Order-in-Original and allowed the respondent's appeal. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1 Commissioner (Appeals), while passing the order, had failed to consider the fact that the provision to rule 16A (4) has been amended vide Notification No.49/2010 Cus. (N.T.) dt.17.06.2010 wherein it was amended that the evidence of sale proceeds must be produced within a period of three months from the date of realization of sale proceeds. Further such period of three months could be extended by period of nine months by making an application to the concerned Commissioner of Customs and Central Excise. 4.2 Having such relaxations in the conditions of Rule 16(4) of Customs, Central Excise Duties and Service Tax Drawback Rules 1995, the respondent had failed to produce the evidence of sale proceeds within three months from the date of realization, even though such realization was done within the period of one year as stipulated by law. 4.3 Hence, in the circumstances discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter then the department would have allowed production of BRCs and dropped the demand of drawback and the liability of the exporter to pay back the drawback would have been cleared. 5.3 In the case of M/S Ramkumar Fashions, Tirupur vs the Assistant Commissioner of Customs, St. John ICD, Tuticorin, (Order-in-Appeal No.21/2012 dated 27.06.2012 against Order-in-Original No.183/2012 dated 21.02.2012 where the BRCs had been furnished belatedly after the Order in Original passed by the Assistant Commissioner, Customs House, Tuticorin confirming the demand for the recovery of drawback sanctioned, the Commissioner (Appeals), Trichy on appeal by the exporter, ordered the appellant to produce the BRCs to the lower authorities for verification and to allow the Drawback as per law. In the cited case department did not file Revision petition against the Order-in-Appeal. The department cannot take different stand in the present case and refuse to pay the refund of recovered drawback accepting the BRCs produced. 5.4 While passing the Order-in-Original, the Assistant Commissioner failed to notice that the department did not respond to the letter of the notice dated 23.05.2012 submitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring was scheduled in this case on 13.04.2015, 07.05.2015 and 07.03.2016. Hearing held on 07.052015 was attended by Shri Krishna kumar R.S., Advocate on behalf of the respondent wherein it was requested to uphold impugned Order-in-Appeal. The applicant department vide their letter dated 21.04.2015 and 03.03.2016 requested to decide the case on merit. 7.Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government notes that the respondents were initially sanctioned drawback claims. Subsequently, the original authority vide impugned Order-in-Original confirmed the demand of already sanctioned drawback on the ground that the respondent failed to submit proof of export realization. The original authority also imposed penalty of ₹ 50,000/- under Section 117 of the Customs Act 1962. Subsequently, the respondent filed a refund claim in terms of Rule 16(4) of the Drawback Rules, 1995 on the ground that they have produced proof of export realization, which was made within stipulated time limit. The original authority rejected the refund claim on the ground that the respondent had not filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (ii) an application fee equivalent to 1% of the FOB value of exports or ₹ 1000/- whichever is less, shall be payable for applying for grant of extension by the Commissioner of Customs or Commissioner of Customs and Central Excise, as the case may be. A plain reading of above provision reveals that the applicability of three months or further nine months (in case of extension by the Commissioner), for submission of proof of export realization from the date of such realization as the case may be, is only under circumstances when the sale proceeds are realized by the exporter after the amount of drawback is recovered from him. However, in impugned case, the facts are different. The exports proceeds are said to be received in the year 2010, while the demand was confirmed vide impugned Order-in-Original dated 14.05.2012 and the amount confirmed paid by the respondent on 31.01.2013. As such, this is not a case where the realizations of export proceeds were made after demand for already sanctioned drawback was confirmed. The applicant has claimed to have realized the export proceeds well before recovery of drawback. As such, Rule 16A(4) will not apply to impugned case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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