2024 (6) TMI 1013 - AT - Customs

Appeal allowed in part: refunds ordered for 33 consignments, penalties quashed, remand for verification within three months

CESTAT KOLKATA - AT allowed the appeal in part, setting aside the denial of drawback for 17 shipping bills where no samples/tests existed and directing ... Denial of Drawback claims, based on testing samples - cross-examination of testing personnel sought, was not granted - no samples drawn in respect of 17 Shipping Bills - 16 Shipping Bills on which samples drawn and tests carried on - Non-verification of export proceedings in respect of all the 33 consignments - Interest on the drawback - Penalties - Confiscation. No samples drawn in respect of 17 Shipping Bills - HELD THAT:- The exports have taken place in June and July 2002. Admittedly, no samples were drawn by the Department nor any samples were tested by NTCL or NIFT. In such a case, the Department could not have relied on the Test Report of NTCL/NIFT in respect of second lot of Shipping Bills to deny the Draw Back claim. In respect of first set of 17 Shipping Bills, on this count itself, the impugned Order is set aside and the Drawback claim of Rs. 38,63,529/- allowed subject to the condition specified. 16 Shipping Bills on which samples drawn and tests carried on - HELD THAT:- As rightly pointed out by the Appellant, both the testing agencies have completed the test and also issued the Test Report in a record time of 24hrs/48hrs. This gives cause of some kind of doubt as to whether proper procedure was followed before coming to a conclusion about PMV. Secondly, though the Department itself has obtained both the certificates, the first one from NTCL and second one from NIFT, the Revenue has straightway proceeded on the assumption that only the NTCL Test Report is applicable. Non-verification of export proceedings in respect of all the 33 consignments - HELD THAT:- It is seen from the records that the Appellant has been claiming that they have received the export proceedings in respect of all the 33 consignments. This fact has not been verified at the Adjudication level. Only for the limited purpose of verifying the BRC in respect of the 33 Consignments, the matter remanded back to the Adjudicating Authority. If on verification the fact is found to be correct, the Appellant should be granted the refund of the drawbacks in respect of both the sets of exports as per law. As the original Appellant has been substituted by the present appellant by way of the Misc. Order cited supra, the refund amount is to be granted to her. Interest on the drawback - HELD THAT:- The Appellant has also prayed that they would be eligible for interest on the drawback which is being paid to them now since they have filed the drawback claim in 2002 itself. The Adjudicating Authority is directed to go through the statutory provisions and case laws on this issue and accordingly grant the refund of the drawback and interest, if any, as per law. Penalties - Confiscation - HELD THAT:- Since the Appeal is being allowed, all the penalties imposed and confiscation ordered stand set aside. Since the issue pertains to the year 2002, the Adjudicating Authority is directed to complete the proceedings within 3 months from the date of communication of this Order. ISSUES PRESENTED AND CONSIDERED 1. Whether Drawback claims in respect of exports for which no samples were drawn by the Department can be denied on the basis of test reports obtained in relation to other consignments. 2. Whether test reports furnished by textile testing agencies, produced in an unusually short time (24-48 hours), can be relied upon without allowing cross-examination of the persons who conducted/compiled those tests. 3. How conflicting PMV (Presumptive Market Value) determinations by two testing agencies should be treated in adjudicating Drawback claims. 4. Whether the adjudicating authority must verify receipt of export proceeds (BRCs/realization) before rejecting Drawback claims and the consequence of non-verification. 5. Entitlement to interest on admitted Drawback amounts and the effect on penalties and confiscation when Drawback claims are allowed. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Reliance on test reports for consignments where no samples were drawn Legal framework: Drawback denial based on quality/valuation testing requires that samples for the relevant consignments be validly drawn and tested; conclusions must relate to the specific exports for which drawback is claimed. Precedent Treatment: No specific precedent was applied or overruled in the judgment; the Court applied established administrative law principles concerning admissibility and relevance of evidence. Interpretation and reasoning: The Tribunal found that for the first set of 17 Shipping Bills (exports in June-July 2002) no samples were drawn by the Department and no tests were conducted by NTCL/NIFT for those particular consignments. Therefore, test reports relating to a different lot could not legally form the basis to deny drawback for the first set. Reliance on test results unconnected to the particular shipments lacked evidentiary foundation. Ratio vs. Obiter: Ratio - where no samples were drawn for specific exports, test reports from other consignments cannot be used to deny drawback claims for those exports. Conclusion: Impugned denial set aside for the first 17 Shipping Bills; drawback allowed subject to verification of export proceeds (see Issue 4). Issue 2 - Admissibility and probative value of rapidly issued test reports and right to cross-examination Legal framework: Administrative adjudication requires that evidence relied upon be capable of testing in adversarial proceedings, which may include cross-examination of persons who produced technical reports where their evidence is determinative of liability or entitlement. Precedent Treatment: The Tribunal had earlier directed remand to permit cross-examination; the adjudicating authority did not permit cross-examination on the ground that tests were panel conclusions and individuals could not be examined. The Court treated the remand direction as binding on the need to provide opportunity to test the veracity/procedure of the reports. Interpretation and reasoning: The unusually short turnaround (NTCL same day; NIFT next day) generated legitimate doubt as to whether proper testing procedure was followed. Where the appellant sought cross-examination to probe procedure and credibility of test conclusions, refusal to permit cross-examination undermined fairness of adjudication. The tribunal emphasized that allegations of procedural irregularity in testing warranted opportunity to cross-examine even if reports were panel-based; procedural avenues to test panel evidence must be provided. Ratio vs. Obiter: Ratio - administrative authorities must afford opportunity to cross-examine or otherwise test technical report authors when the reports are determinative and when procedural irregularity is plausibly alleged; unexplained rapid issuance of reports raises a reasonable doubt about correctness. Conclusion: The rapid issuance of test reports and denial of cross-examination were material defects; these considerations informed the Tribunal's willingness to accept the appellant's challenge to reliance on such reports for specific consignments. Issue 3 - Treatment of conflicting PMV determinations by two testing agencies Legal framework: Where multiple expert/technical reports yield different valuations, adjudicatory authorities must assess the comparative probative weight, reasonableness, and relation to the claimant's asserted value; entitlement follows if claimed drawback does not exceed validated PMV. Precedent Treatment: The Court did not overrule precedent but applied ordinary rules of evidence weighing and valuation consistency between reports and claimed values. Interpretation and reasoning: Comparison of NTCL and NIFT reports showed divergence: for T-shirts NTCL Rs.35 vs NIFT Rs.40-50; for Gents shirts NTCL Rs.50-55 vs NIFT Rs.65-80. The appellant's claimed drawback per piece was Rs.40.36 for T-shirts and Rs.50.31 for Gents shirts. Where the appellant's claimed rates were at or below the PMV as determined by either or both agencies, there was no basis to deny drawback. Specifically, for Gents shirts the claimed rate was below both agency PMVs, so denial lacked justification; for knitted T-shirts and other garments, claimed rates fell within or below ranges found by agencies, supporting allowance. Ratio vs. Obiter: Ratio - when claimant's claimed drawback does not exceed the validated PMV (especially where at least one competent agency's valuation is equal or higher), entitlement should be recognized; conflicting valuations require adjudicator to adopt the valuation consistent with evidence and fairness rather than mechanically prefer one report without analysis. Conclusion: For the 16 Shipping Bills with test reports, the appellant was found eligible for drawback (aggregate specified in the judgment) because claimed rates did not exceed validated PMVs; consequently denial was set aside. Issue 4 - Obligation to verify receipt of export proceeds (BRCs) before denying drawback Legal framework: Drawback entitlement is contingent upon realization/receipt of export proceeds as per foreign exchange rules; adjudicators should verify BRCs or other proof of receipt before rejecting claims. Precedent Treatment: The Court remanded for verification rather than deciding on the merits of realization; no precedential overruling. Interpretation and reasoning: The record showed the appellant asserted receipt of export proceeds for all 33 consignments, but the adjudicating authority did not verify these assertions. The Tribunal directed remand for limited purpose of verifying BRCs/realization; if verified, refund of drawbacks and interest to be granted in accordance with law. Ratio vs. Obiter: Ratio - adjudicating authorities must verify realization of export proceeds where entitlement depends on such realization before finally rejecting or allowing drawback claims. Conclusion: Matter remitted to adjudicator for verification of BRCs; if verified, drawback to be refunded to substituted appellant and interest considered (see Issue 5). Issue 5 - Entitlement to interest and consequences for penalties/confiscation upon allowance Legal framework: Statutory provisions and case law govern interest on refunds and consequences when an appeal succeeds in overturning penalty/confiscation orders. Precedent Treatment: The Tribunal directed the adjudicating authority to consider statutory provisions and case law in determining interest; penalties/confiscation were set aside as corollary to allowance of the appeal. Interpretation and reasoning: Given that drawback claims dated to 2002 and the appeal resulted in allowance, the adjudicator was instructed to examine entitlement to interest per law. As the appeal was allowed, all penalties and confiscation ordered in relation to the denied claims were set aside. Ratio vs. Obiter: Ratio - successful challenge to denial of drawback requires the authority to consider statutory interest for delayed refund; penalties and confiscation connected to the denied claims are to be rescinded when the denial is overturned. Conclusion: Adjudicator to determine and grant interest, if any, per statutory law and case law; penalties and confiscation vacated. Miscellaneous directions Timeframe: The adjudicating authority was directed to complete the limited verification proceedings within three months from communication of the order, reflecting the aged nature of the dispute (year 2002) and need for expedition.