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TMI Blog2024 (9) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government may by Rule made under Sub Section (2) specify the procedure for the recovery of adjustment of the amount of such drawback. The issuance of notice is sine qua none before affecting the recovery of erroneously availed drawback. The requirement of issuing notice in the name of a right person and not a dead person is not merely a procedural requirement but is a condition precedent to the notice being valid in law. Such notice was issued in the name of the exporter on 28.09.2018, after his death. The notice therefore suffers from fundamental jurisdictional error as it was issued in the name of a dead person and the proceedings initiated consequent to such notice were also proposed in the case of a dead person. No steps we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate Writ, direction or order directing learned Respondent to drop the recovery proceedings initiated against the Petitioner vide Recovery Notice dated 12.09.2019; (b) Issue Rule Nisi in terms of prayers at (a) above and confirm the same after hearing the parties; (c) Pass ad-interim ex-parte order in terms of prayer at (a) above; (d) Award cost of this Petition. 2. Brief facts of the case are that petitioner s husband, late Arun Kumar Goyal effected certain exports during 2009-2014 through ICD Tughlakabad and availed benefit of Duty Drawback Scheme in terms of Section 75 of the Customs Act, 1962 [ Act ] read with the Customs, Central Excise Duties Service Tax Drawback Rules, 1995. 3. Petitioner s husband expired on 17.08.2018, leaving be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were already received and insofar as the remaining invoices are concerned, petitioner has filed an affidavit pointing out that the remittances against the 8 invoices were substantially received as there were minor differences between the amounts received and the invoiced amounts. 9. It has been argued by the learned counsel for the petitioner that the late husband of the petitioner was the sole proprietor of M/s. L.V. Tools Components and consequent to his death and closure of the proprietorship firm, no recovery can be effected from his legal heirs in terms of the law propounded by the Supreme Court in the case of Shabina Abraham vs. Collector of Central Excise and Customs 2015 (10) SCC 770 and the order of this Court in Amandeep Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice to be issued to for production of evidence of realisation of export proceeds within a period of thirty days from the date of receipt of such notice and where the exporter does not produce such evidence within the said period of thirty days, the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be or Deputy Commissioner of Customs shall pass an order to recover the amount of drawback paid to claimant and the exporter shall repay the amount so demanded within ) thirty days of the receipt of the said order: Provided that where a part of the sale proceeds has been realised, the amount of drawback to be recovered shall be the amount equal to that portion of the amount of drawback paid which bears the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a condition precedent to the impugned notice being valid in law. ( See Sumit Balkrishna Gupta v. Asst. CIT [2019] 414 ITR 292 (Bom); [2019] 2 TMI 1209-Bombay High Court). 27. In Chandresh Jayantibhai Patel v ITO [2019] 413 ITR 276 (Guj), [2019] (1) TMI 353-the Gujarat High Court has also held (page 290 of 413 ITR) : the question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceased-assessee can be said to be in conformity with or according to the intent and purposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable to be set aside. 16. We are also in agreement with the argument of learned counsel for the petitioner that consequent to the death of the petitioner s husband, the sole proprietor of M/s. L.V. Tools Components, no recovery can be effected from his legal heirs in terms of law propounded by the Supreme Court in the matter of Shabina Abrahad (supra) and Amandeep Singh Sehgal (supra). This Court in the case of Amandeep Singh Sehgal (supra), while taking note of the decision of the Supreme Court in the case of Shabina Abraham (supra) observed as under:- 2. As far as the Petitioner herein is concerned, he is a Director of a private limited company by the name of M/s. Gardiner Exim Pvt. Ltd. The liabilities owed by the aforementioned five ..... X X X X Extracts X X X X X X X X Extracts X X X X
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