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TMI Blog2021 (8) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... d to drawback under Section 75 of the Act. A SCN was issued demanding drawback of ₹ 1,20,02,815/- along with interest but after following the due process, the Additional Commissioner only confirmed the demand of drawback to the tune of ₹ 50,48,749/- as per Rule 16 of Customs, Central Excise Service Tax Drawback Rules, 1995. Further, the rejection of this amount is under challenge before the Revisionary Authority. In the present case, the Department has failed to prove that there was a mala fide and wilful mis- representation by the Customs Broker. It seems that the Commissioner (Appeals) has totally misunderstood the facts and has wrongly observed that the appellant (Customs Broker) and the exporter have been operating from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 investigation was launched by Customs Intelligence Unit (CIU), Bangalore. Preliminary enquiry showed that ADPL had filed three Shipping Bills dated 15-09-2016 and 16-09-2016 for the export of mobile phones to New Zealand, Hong Kong and Dubai. Verification of the Shipping Bills in question showed that the mobile phones appeared to have been manufactured in China. According to CIU, as per the provisions of Section 75 of Act, duty drawback was admissible in respect of any goods manufactured, processed or in respect of which any operation had been carried out in India and in the present case there appeared to be no evidence of the mobile phones having been manufactured in India so as to claim duty drawback in terms of Section 75 of the Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the present appeal. 3. Heard both the parties and perused the records. 4. Learned Counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that penalty under Section 114AA of the Act cannot be imposed on the appellant because the appellant s case does not fall within the ingredients of Section 114AA of the Act. He further submitted that after perusal of the Section 114AA of the Act, it is clear that penalty is imposable on any person who willingly make a false declaration or statement or file a false document. However, the fact that as per the legal provision, the penalty is imposable whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on paper and no goods crossed the Indian border. The enhanced penalty provision has been proposed considering the serious frauds being committed as no goods are being exported, but papers are being created for availing the number of benefits under various export promotion schemes. 66. The Committee observe that owing to the increased instances of wilful fraudulent usage of export promotion schemes, the provision for levying of penalty upto five times the value of goods has been proposed. The proposal appears to be in the right direction as the offences involve criminal intent which cannot be treated at par with other instances of evasion of duty. The Committee, however, advise the Government to monitor the impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,20,02,815/- along with interest but after following the due process, the Additional Commissioner only confirmed the demand of drawback to the tune of ₹ 50,48,749/- as per Rule 16 of Customs, Central Excise Service Tax Drawback Rules, 1995. Further, the rejection of this amount is under challenge before the Revisionary Authority. This, itself, shows that the exporter ADPL is contesting the denial of drawback which is subjudice. Further, I find that in the present case, penalty has only been imposed on the CHA under Section 114AA of the Act and no penalty has been imposed on the exporter. Further, I find that the ingredients of Section 114AA of the Act is not applicable to the CHA and is meant against the fraudulent exporter as is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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