9911796707
TMI Blog1999 (6) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... to the RBI to write off the not realized amount as the foreign buyers had been declared bankrupt vide orders dated 19th May and 21st May, 1997 respectively by the appropriate Court in the USA and there was no possibility of realization of the said outstanding export proceeds. On the basis of Statement received from RBI, the applicants were asked to furnish the details of their outstanding amounts beyond the posted stipulated in the FERA, 1973 along with the drawback availed thereon. They were also asked to surrender the drawback amount availed against the non-repatriated sale proceeds with interest @ 24% per annum. The applicants contested the demand by the Department on the ground that the drawback was paid as rebate on Central Excise Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive effect; (3) Even a plain reading of Rule 16A does not suggest either expressly or by implication about giving it retrospective effect. Further, in Rule 16A, there is no provision that what had been laid down by way of amendment was, by any process of intendment, to be taken as having been always implied there; (4) That duty drawback cannot be withdrawn retrospectively- Mazda International (P) Ltd. v. Union of India - 1995 (77) E.L.T. 526 (Bom); (5) The drawback claimed and allowed and goods exported prior to 26-5-1995 have to be considered and decided in accordance with the Drawback Rules, 1971 and not Rule 16A of the Drawback Rules, 1995; (6) Rule 16A of the Drawback Rules, 1995 should be read as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of the exported goods; (9) The withholding of drawback amounts pertaining to subsequent period is illegal. Even the Custom House has not released the amount due to them in excess of the demanded sum of Rs. 1,71,37,545/-. The Customs Department also did not accept to adjust the demanded sum from their dues lying with the Delhi and Chennai Customs. On the other hand, they were forced to pay up Rs. 1.5 lakh by two cheques on 10-7-1998 and 3-11-1998; (10) The Commissioner (Appeals) has not touched Section 37 of the Central Excise Act. What the applicant was given was Central Excise duty and not Customs duty as drawback; (11) The Order-in-Appeal does not state on what basis the calculation was drawn that the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeds have not been realized. Government observes that till the insertion of Rule 16A in the impugned Rules, vide M.F. (D.R.) Notification No. 72/95-Cus. (N.T.), dated 6-12-1995, neither the provisions nor the procedure for recovery of Central Excise component of Drawback were available either in the Central Excise Act, 1944 or the impugned rules. Hon'ble Supreme Court in the case of Cannanore Spg. Wvg. Mills Ltd. reported in 1978 (2) E.L.T. (J 375) (S.C.) = AIR 1970 SC 1950 have held that rule making authority under the Central Excise Act had not been vested with the power to make rules with retrospective effect. The applicants have relied upon the judgment in Ambalal v. Union of India reported in 1983 (13) E.L.T. 1321 (S.C.) = 1983 ECR ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
