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TMI Blog2021 (8) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Drawback Rules, 1995 for the period April 2008 and May 2008. Penalty has also been imposed on the Company as well as the Director under Section 114(iii) of the said Act. 3. Appeals No. C/75250/2017, C/75375/2017 and C/75376/2017 have been filed by the partnership Firm, M/s. Mortex (India), Shri Mahesh Chandra Keyal, Partner and Shri Kailash Chandra Keyal, Authorised Person of the said Firm against Order in Original No. KOL/CUS/COMMR/PORT/74/2016 dated 16.12.2016 read with Corrigendum Order dated 02.02.2017 wherein demand for recovery of DEPB amount as proposed in the Show Cause Notice DRI F No. 62/KOL/APP/2012/514 dated 29.11.2013 issued under Section 124 and Section 28 of said Act have been confirmed for the period 2008-09 to 2012-13 along with penalty under Section 113(i) and Section 114AA of the said Act. Penalties have also been imposed on the above individuals who are in appeal before us. 4. Sri Rajeev Kumar Agarwal, learned Advocate, appeared for the appellants and Shri S.S.Chattopadhyay, learned Authorized Representative appeared for the Revenue. 5. The learned Advocate appearing for the assessee submitted that in case of the appellant Company, Premium Ferrome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of limitation. On same counts, he submitted that penalty is not imposable on the appellants. He also filed detailed written submissions which have been duly perused and considered. 6. The learned Authorized Representative appearing for the Revenue reiterated the findings made by the learned Commissioner in the impugned adjudication orders and submitted that since the goods were not of Indian Origin, the exports benefit for DEPB and Drawback have rightly been denied and the same is recoverable from the appellants, even though the shipping bills were not challenged by the Department. 7. Heard both sides through video conferencing and perused the appeal records. 8. The issue that requires determination is whether the Department could dispute the grant of DEPB and Drawback benefit in the facts of the present case. We have carefully perused the decision in the case of Jairath International (Supra). In the above mentioned case, the DRI issued Show Cause Notices on the basis of investigation initiated by it to allege that the assessee exporter had fraudulently obtained drawback amount. The DRI conducted search at the various premises of the exporters on the basis of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es things more than clear that goods which have already been cleared are not "imported goods". Similarly, goods which have already been exported are no more 'export goods'. In the definition part as well in the various Sections of 1962 Act and Rules made thereunder, we find that word 'imported goods' or 'export goods' has been used which shows true intention of the legislature. 12. Value of "export goods" and "imported goods" is determined under Section 14 of the 1962 Act. Government in exercise of power conferred by Section 14 of the 1962 Act has framed Valuation Rules, 2007 which prescribe manner to determine value of "export goods" where value declared by exporter is rejected. Section 14 of 1962 Act and relevant Rules of Valuation Rules, 2007 are extracted as under :.............. 13. As per Rule 16 of Drawback Rules, 1995 Claimant (Exporter) shall on demand by Proper Officer shall repay the amount of drawback which has been erroneously or paid in excess of what the Claimant is entitled to. Relevant extracts of Drawback Rules, 1995 are as under : 14. As cited by Mr. Bansal, Hon'ble Supreme Court in the case of ITC Ltd. v. Commissioner of Central Excise, Kolkata-IV - 2019-T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g corrected in appellate proceedings. 16. We on examination of the scheme of the 1962 Act and in view of the judgment of Hon'ble Supreme Court in case of ITC v. CCE (supra) find that Rule 16 of Drawback Rules, 1995 is also in the nature of execution proceedings thus an officer even higher in rank than proper officer, who framed assessment at the time of export, cannot modify a shipping bill qua value and consequent entitlement of duty drawback while issuing notice or passing order under Rule 16 of the Drawback Rules, 1995. The contention of the counsel for Respondents that as per Valuation Rules, 2007 proper officer has power to re-assess value of goods even though already exported is untenable. As noted in Famina Knit Fab (supra) and hereinabove, Valuation Rules are applicable to 'export goods' and these Rules are not enabling provisions to frame reassessment. Section 14 empowers to frame Rule to reject declared value and re-determine value of export goods. The Valuation Rules, 2007 are framed in exercise of power conferred by Section 14 of 1962 Act. Rule 1(3) and 8 of Valuation Rules permit to reject value of 'export goods'. As per definition of export goods, the goods which st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame re-assessment of goods already exported; and hence the impugned order dated 25-11-2016 (P-9) is hereby quashed. No costs..." Further, in the case of Century Knitters India Ltd (Supra), the High Court took the same view as held in the case of Jairath International (Supra). The relevant paragraphs of the decision is extracted below:- "3. The Petitioners realized export proceeds, however Directorate of Revenue Intelligence (DRI) initiated an investigation against the Petitioners alleging that Petitioners are fraudulently availing duty drawback by grossly overvaluing the goods in the export documents. The DRI searched various premises of the Petitioners on 26.4.2012 and concluded that Petitioners had mis-declared value of goods which were exported upto 26th April' 2012. On the basis of investigation conducted by DRI, Joint Commissioner of Customs, (SIIB), ICD, Delhi i.e. Respondent No. 3 issued common impugned Show Cause Notice dated 31.7.2014 (Annexure P-1) calling upon the Petitioners to show cause as to why declared FOB value of exported goods should not be rejected in terms of Rule 8 of the Customs Valuation (Determination of Value of Export Goods) Rules, 2007 (for sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs during the relevant period 2015-2017, in permitting exportation of goods including classification and other aspects as per Section 51 ibid were considered as legal and proper by the Commissioner of Customs. This is evident from the fact that no specific order was passed by such competent authority in directing the officer subordinate to him for filing of appeal before the Commissioner (Appeals), as mandated in sub-section (2) of Section 129D of the Act. In fact, the materials available on records suggest that no appeals were filed by the Department against the assessment orders passed on the Shipping Bills before the Commissioner (Appeals) under Section 128 of the Act. Hence, the issue of classification and other facets concerning exportation of subject goods covered under the already assessed Shipping Bills was attained finality and any issues arising out of finalisation of such Shipping Bills cannot be questioned or agitated by the Department subsequently by initiating show cause proceedings against the exporter, the appellant herein. In other words, unless and until the order passed under Section 51 of the Act is dealt with in the manner prescribed by the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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