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TMI Blog2025 (4) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... IO'). 4. The present case revolves around the Duty Drawback Scheme (hereinafter 'Scheme') which is a unique scheme administrated by the Government. This scheme allows refund or recoupment of customs and excise duties that are paid by the exporters on products which are exported. The purpose is to encourage exports and to enable exporters to set off some of the costs accrued in the process of manufacturing the products which are exported. Even after the introduction of Integrated Goods and Service Tax (hereinafter 'IGST') regime, this scheme had been continued in respect of IGST and Compensation Cess which may have been paid by the exporters. The said duty drawbacks are claimed under Sections 74 and 75 of the Customs Act, 1962. 5. This scheme, however, has become the subject of misuse by some traders/ exporters who make fraudulent exports merely with a view of availing the benefits under the scheme. Fraudulent exports could be in various forms including, (i) filing of fake documents, (ii) over-valuation of goods that have been exported and (iii) the exporters themselves being completely non-existent etc., Several cases have come before the Court where such duty drawbacks hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 read with Section 14 of the Customs Act, 1962. (ii) I order for recovery of duty drawback amount of Rs. 1,85,84,666/- (Rs. 83,30,980/- Plus Rs. 1,02,53,686/-considering eligible drawback as Rs. Zero in case where no remittance has been received) under the provisions of Rule 16 and 16A of the Customs, Central Excise Duties and Service Tax Drawback (Amendment) rules, 2000 read with proviso to Section 75 of the Customs Act, 1962, along with interest under the provisions of Section 75A (2) of the Customs Act, 1962 as detailed above. (iii) I hold that the goods having declared FOB value Rs. 21,31,23,362/- (Rupees Twenty One Crores Thirty One Lakhs Twenty Three Thousand Three Hundred Sixty Two Only) are liable for confiscation under the provisions of Section 113 (i) of the Customs Act, 1962 read with Section 11 of the Foreign Trade (Development & Regulation) Act, 1992, Rule 11 and 14 (2) of the Foreign Trade(Regulation) Rules, 1993 and provisions of Section 50(2) of the Customs Act, 1962. As, the goods were not seized under Section 110 of the Customs Act, 1962, therefore, I, refrain from imposing redemption fine under Section 125 of the Customs Act, 1962. (iv) I order for appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has been received ) under the provisions of Rule 16 and 16A of the Customs, Central Excise Duties and Service Tax Drawback (Amendment) rules, 2000 read with proviso to Section 75 of the Customs Act, 1962, along with interest under the provisions of Section 75A (2) of the Customs Act, 1962 as detailed above. (iii) I hold that the goods having declared FOB value Rs. 2,15,31,800/- (Rupees Two Crores Fifteen Lakh Thirty One Thousand Eight Hundred Only) are liable for confiscation under the provisions of Section 113 (i) of the Customs Act, 1962 read with Section 11 of the Foreign Trade (Development & Regulation) Act, 1992, Rule 11 and 14 (2) of the Foreign Trade(Regulation) Rules, 1993 and provisions of Section 50(2) of the Customs Act, 1962. Though, the goods were not seized under Section 110 of the Customs Act, 1962, therefore, I, refrain from imposing redemption fine under Section 125 of the Customs Act, 1962. (iv) I impose penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) under Section 114 (iii) of the Customs Act, 1962 upon the exporter Mis Abhishek Exim India. (v) I impose penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) under Section 114AA of the Customs Act, 1962 up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SSC submits that the said writ petition was filed by the CA Mr. Yogender Singh Balyan, who was a co-noticee against whom certain penalties etc., were imposed vide the impugned OIO. In the said writ, this Court vide order dated 10th March, 2025, has already relegated the co-noticee to avail the appellate remedy. 13. Mr. Anurag Soan, ld. Counsel for the Petitioner countering the above submission states that in W.P.(C) 3012/2025, Rule 16 of the Customs Central Excise Duties and Service Tax Drawback Rules, 1995 (hereinafter 'Duty Drawback Rules') was not challenged. 14. The Court has considered the matter and heard the Counsels for the parties. Firstly, on the aspect of limitation, the relevant rule, i.e., Rule 16 of the Duty Drawback Rules, 1995 based on which the proceedings against the Petitioner has been initiated, reads as under: "RULE 16 Repayment of erroneous or excess payment of. drawback and interest. - Where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial amount of duty drawbacks has been alleged to have been availed of by the Petitioner by completely altering the value of the exports; (iii) No reply on merits being forthcoming from the Petitioner (iv) The existence of the parallel invoices is not even being disputed. Ld. Counsel for the Petitioner, in fact, confirms the allegation when a question is put by the Court today. 21. On Considering the above aspects, the Court is not inclined to entertain the challenge to the impugned OIO dated 14th January, 2025 in a writ petition under Article 226 of the Constitution of India. 22. However, it is relevant to note that this Court vide order dated 10th March, 2025 in W.P.(C) 3012/2025 has, in fact, relegated the co-noticee to avail the statutory appellate remedy. Further, the Coordinate Bench of this Court in Commr. of Customs v. Sans Frontiers, (2023 SCC OnLine Del 7913) where a similar issue of limitation under Rule 16 of the Duty Drawback Rules was raised, the Court had relegated the case on the ground that there was an alternate remedy that remained un-exhausted. "76. The other issue, which is raised by the firm, is that the initial SCN dated August 24, 2015, which held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed after affording an opportunity of being heard to the firm.
85. The writ petition is disposed of in the aforesaid terms."
23. In view of the above decision and considering that the co-noticee has been relegated to the appellate remedy, this Court is of the opinion that, though the exercise of writ jurisdiction in favour of the Petitioner may not be warranted, the Petitioner ought not to be denied the opportunity to avail the statutory remedy on grounds of parity.
24. Accordingly, the Petitioner is also permitted to avail of the appellate remedy under Section 128 of the Customs Act, 1962.
25. Needless to say, any observations made by this Court in this proceeding shall not have any bearing on the adjudication before the Appellate Authority and it shall adjudicate the same in accordance with law. At this point, ld. Counsel for the Petitioner submits that the statement made by the Petitioner before the DRI has been relied upon in the impugned OIO, but the same was extracted out of duress and coercion. Let the same be raised before the Appellate Authority.
26. The petition is disposed of in the above terms along with all pending applications. X X X X Extracts X X X X X X X X Extracts X X X X
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