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TMI Blog2024 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the SCN issued under section 124 under which notice can be issued only for confiscation of goods and imposition of penalty; The only proposal in the SCN falling within the scope of section 124 is the imposition of penalty under section 114; this cannot be sustained because there is no proposal to confiscate export goods or holding the export goods liable to confiscation under section 113 which is a necessary pre-requisite for imposing penalty under section 114. The remaining proposals in the SCN fall beyond the scope of any SCN issued under section 124. - MR. DILIP GUPTA, PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Bharat Bhushan, Advocate for the appellant Shri Girijesh Kumar, Authorised Representative for the department ORDER The Order-in-Appeal [Impugned order] dated 28.4.2022 passed by the Commissioner (Appeals) upholding the Order-in-Original [OIO] dated 9.7.2021 passed by the Joint Commissioner is assailed in these two appeals by M/s. Nasib Exports and Shri Pawan Tanwar. The Joint Commissioner had, in the OIO, decided the proposals made in the Show Cause Notice [SCN] dated 29.3.2017 and (a) disallowed export incentives availed by Nasib exports on the str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribes a normal period of limitation of one year and an extended period of limitation of five years if the not levy, short levy, etc. was on account of collusion, any wilful mis-statement or suppression of facts by the importer or his agent. There is no provision to recover duties beyond five years in any case. 8. Section 124 provides for issue of SCN for confiscation of goods or imposition of penalty. It reads as follows: 124. Issue of show cause notice before confiscation of goods, etc. No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person (a) is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded and recovered from them; (e) A complaint before the appropriate authority be not lodged under Section 142 of the Negotiable Instruments Act, 1881 for allegedly violating the provisions of Section 138 of the Negotiable Instrument Act, 1881 as their cheques were returned by the respective banks for the reason of Insufficient funds ; (f) Separate penalty upon S/Shri Harminder Singh and Pawan Tanwar for allegedly admitting of having committed economic fraud should not be imposed under the provisions of Section 114 of the Customs Act, 1962. 10. It is clear from the above, that there are three types of proposals in the SCN and these have been confirmed by the OIO and the confirmation was upheld by the impugned order: (a) To deny export incentives on the allegedly fraudulently obtained DFRCs and consequently recover the duty not paid along with interest; (b) Recover the drawback paid in some cases where the appellant had not produced bank realization certificates evidencing receipt of the remittances against the exports; (c) Impose penalty on the appellants under section 114. 11. Of these, only the proposal to impose penalty on the appellants under section 114 falls within the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in its obligation to receive the remittance. If the exporter does not repay the drawback under Rule 16A, it can be recovered from him under Section 142 (like recovery of any arrears). 16. Rule 16A also provides that if after the drawback is recovered, it the exporter gets the remittance in respect of the exports, then the drawback will be paid again to him. 17. Clearly, none of these proceedings - the payment of drawback or recovery of erroneously paid drawback or recovery of drawback if the exporter fails to get the remittance of the export proceeds or payment of the repaid drawback if the exporter gets the remittance- are NOT adjudication proceedings where the rights and liabilities of the exporter are decided or altered. All these give effect to the assessed Shipping Bill - the entitlement of the exporter to drawback under it and the liability of the exporter to realize the foreign exchange within time or to repay the drawback paid to him. The relevant extracts of Rules 16 and 16 A of the Drawback Rules and Section 142 of the Customs Act are as follows: 16. Repayment of erroneous or excess payment of drawback and interest. Where an amount of drawback and interest, if any, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of thirty days referred to in sub-rule (2), it shall be recovered in the manner laid down in rule 16. (4) Where the sale proceeds are realised by the exporter after the amount of drawback has been recovered from him under sub-rule (2) or sub-rule (3) and the exporter produces evidence about such realisation within one year from the date of such recovery of the amount of drawback, the amount of drawback so recovered shall be repaid by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to the claimant. Section 142. Recovery of sums due to Government. (1) Where any sum payable by any person under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid, (a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or (b) the Assistant Commissioner of Customs or Deputy Commissioner of Customs] may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, secondly, he may prefer an appeal before Appellate Authority. A team of Customs officers at the time of export of goods verify different particulars including value declared by an exporter. The declared value may be accepted or re-assessed and in case re-assessed value is not accepted by exporter, proper officer has to pass speaking order. Thus, as per scheme of the 1962 Act, department is not remediless and Courts are bound to interpret law as such. Courts while interpreting law can neither add nor subtract any word from the plain language irrespective of consequences. It is the legislature who has to rectify, repair or amend the law in case any judgment interpreting law is not acceptable or is contrary to intent and purport of enactment. 19. These execution proceedings are not covered under an SCN issued under section 124. 20. Thus, the only proposal in the SCN which is covered by section 124 is the proposal to impose penalty under section 114. It reads as follows: 114. Penalty for attempt to export goods improperly, etc. Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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