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TMI Blog2024 (10) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... ON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA For the Petitioner Through: Mr. Akhil Krishna Maggu, Mr. Vikas Sareen, Ms. Maninder Kaur Ms. Oshin Maggu Mr. Ruchir Baswal Advocates. For the Respondents Through: Mr. Sunil Kumar Pandey, SPC with Ms. Neha Yadav, Adv. for R-1. Mr. Aditya Singla, SSC with Ms. Saakshi Garg Mr. Raghav Bakshi, Advocates for CBIC. JUDGMENT RAVINDER DUDEJA, J. 1. The present writ petition has been filed, seeking following reliefs:- i. issue an appropriate writ, order or direction of certiorari to set-aside/quash the impugned revision order number 272/22-Cus dated 18.08.2022 passed by the respondent number 2; and/or, ii. issue an appropriate writ of mandamus order direction thereby directing the respondent number 3 to defreeze the bank account number 258755707372 of the petitioner held at IndusInd Bank, Moradabad branch. 2. Petitioner is a sole proprietorship firm, engaged in the export of handicrafts. 3. During the period 08.12.2014 to 13.12.2014, petitioner had exported 24 consignments of brass, copper and iron handicrafts to foreign buyer M/s. Metal Masters, UAE. Petitioner availed duty drawback on the export of aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the petitioner and DGFT has issued all the BRCs of the petitioner. 7. It has been submitted that the order passed by the Revisional Authority is devoid of merit and without any basis, inasmuch as, no independent findings have been returned for upholding the impugned Order-in-Original and Order-in-Appeal and the penalty imposed is against the principles of natural justice. It is submitted that order has been passed arbitrarily and without application of mind and is therefore liable to be quashed and set aside. 8. Per contra, learned counsel for the Revenue has submitted that the money, said to have been received as export proceeds, was not from the consignee but from a third party, which was not mentioned as Notifier before the Customs Authority at the time of filing of shipping bills. It is further submitted that the amount of US$ 121886,60 out of total proceeds of US$ 1125500.64 had been received from the consignee M/s. Metal Masters while rest of the payment was received from three other entities which were not notified as third parties in the export documents. It is further submitted that neither the petitioner nor the bank submitted any documents to support the third par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in accordance with, and subject to, the rules made under sub-section (2); [ Provided that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported materials used in the [manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of the value of the imported materials used in the [manufacture or processing of such goods or carrying out any operation on such goods] or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the [Foreign Exchange Management Act, 1999 (42 of 1999)], such drawback shall [except under such circumstances or such conditions as the Central Government may, by rule, specify,] be deemed never t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from an Open Cover Country; and g) In case of imports, the invoice should contain a narration that the related payment has to be made to the (named) third party, the Bill of Entry should mention the name of' the shipper as also the narration that the related payment has to be made to the (named) third party and the importer should comply with the related extant instructions relating to imports including those on advance payment being made for import of goods. 12. Thus, as per RBI Circular, there is requirement of Tripartite Agreement between the petitioner, the consignee firm and the said third party. The stand of the Department is that both petitioner and the officials of KMBL have failed to produce any document evidencing that there was a valid Tripartite Agreement between the parties, while the position taken by the petitioner is that the Tripartite Agreement dated 05.10.2014 was produced before the Authorized Bank and the respondent department. 13. Tripartite Agreement dated 05.10.2014 (Annexure P-14) has been executed between the petitioner M/s. Innovative Crafts and foreign buyer M/s. Metal Masters, FZC. Article 4 of the agreement provides for third party payments, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ankit Jain, Branch Manager is reproduced below:- In response to Summon dated 20.12.2016, I present myself today on 06.01.2017, to tender my voluntary statement under Section 108 of the Customs Act, 1962. I have been explained the provisions of Section 108 of the Customs Act, 1962 and I have fully understood the same that I have to tender my true and correct statement and this statement of mine can be used against me, my firm or any other person in any court of law or in any departmental proceedings as evidence. I, Ankit Jain, state that in response of your summon dated 20.12.2016, the e-BRC in respect of the third party has been issued to M/s innovative crafts for the period Jan, 2015 to June, 2015 under the RBI Master Circular No. 14/2014-15 dated 01.07.2014, as per the Third party payments for export/ Import transactions under the above said master circular is as under: (v) Third party payments for export/Import transactions Taking into account the evolving international trade practices, it has been decided to permit third party payments for export/Import transactions can be made subject to conditions as under: a) Firm irrevocable order backed by a tripartite agreement should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur bank has followed all the RBI Master Circular No. 14/2014-15 dated 01.07.2014 Internal guidelines as; a) In the instant case, our bank has collected from the party, the Shipping Bill, Invoice, FIRC, SDF form, Bill of lading, request letter of the party and third party letter along with delay reason and discount letters, as required for processing of the transactions. The country of the third party remitter was also FATF compliant. The statements received from UAE and Hongkong both the countries are FATF Compliant. b) In the instant case, the payment received through the bank channels c) In the instant case, Export Declaration Form is not taken by our bank. for the EDI port the Shipping Bill is treated as Export Declaration form. The party has submitted the Exchange Control Copy of Shipping Bill, Original SDF Form to our bank. The computerized shipping bills issued from the EDI port have no provision to insert the name of the third party in SB/SDF. The party has also submitted the letter to the bank for third party remittance wherein they submitted the name of the parties from the remittance was received. d) In the instant case, the party has submitted the letter to the bank for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fts and M/s Harshita Overseas has been closed by the parties in our bank. Question : As per our letter of even 30081 dated 22.12.2016, wherein we have asked if the said e-BRC issued in respect of M/s Innovative Crafts for remittance received from third party is being cancelled? Answer : I state that as all the e-BRC are in used mode so we cannot cancelled the same. The same may be checked from the DGFT. Question : Please intimate the outcome of any verification from your end regarding the veracity of M/s Innovative Crafts declaration pertaining to the third party as per our letter of even 30081 dated 22.12.2016. Answer : I state that as the payments received through the banking channel, which Implies that the overseas parties are having an account with the banks. In this case, we have process the transactions as per the RBI Guidelines and as per internal process. Question : Please intimate whether any action has been taken in respect of M/s Harshita overseas and M/s Modern Crafts which is owned by the family members of Smt. Meena Agarwal, the owner of M/s Innovative Crafts where third party remittance has been shown fraudulently (reference from letter of even no. 30081 dated 22.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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