TaxTMI 
TaxTMI 
2011 (5) TMI 718
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....erred to as 'BR Certificate'], a notice dated 9-7-2001 was issued by the Deputy Commissioner (Customs), ICD, JRY, Kanpur, requiring him to show cause as to why drawback Rs. 44,38,625/- be not recovered from the petitioner in view of the provisions of Rule 16A of the Customs and Central Excise Duties Drawback Rules, 1995 and proviso to Section 75(1) of the Customs Act, 1962. 3. Petitioner-Company replied to the aforesaid show cause notice and furnished 'BR Certificate' against Shipping Bill No. 25 dated 13-10-2000. Regarding other Shipping Bills, it was informed that the petitioner-Company has obtained permission for extension of time from the Reserve Bank of India and as a proof thereof had also enclosed the RBI's letter extending the due date till 27-7-2001. It may be added that the time schedule was extended by the Reserve Bank of India from time to time and finally upto 1-8-2004 through various letters. Vide letter dated 22-3-2007, the petitioner-Company informed the Customs Department that the nine Shipping Bills for which notice was issued and three other Bills relating to Shipments from other ports have been written off by the Banker i.e. State Bank of India, Industrial....
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....nt can very well proceed for recovery of drawback even in absence of Export Outstanding Statement. Before the appellate authority, it was vehemently argued that the proceedings can be initiated by the Department only on receipt of relevant information from Reserve Bank of India but the appellate authority overlooked the aforesaid contention and observed that in Rule 16A, the word "only" has nowhere been used in the aforesaid Rule. Therefore, the customs authorities can very well initiate proceedings of recovery of drawback even in absence of Export Outstanding Statement. 8. Elaborating his argument, learned Counsel for the petitioner submitted that the Central Board of Excise & Customs has issued various circulars from time to time, which govern the settlement of disputes. The Reserve Bank of India has written off the bills of the petitioner without surrender of duty drawback vide its letter dated 24-5-2004, the relevant period/year for decision of the present dispute would be the period starting from 1-7-2003 till 30-6-2004. The appellate authority has wrongly relied on paragraph 3 of the Circular No. 22, dated 24-9-2003 and observed that even the deletion of Exporter's name....
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....ns of the statutes, show cause notice was issued. It was also added that the scheme of 'Duty Drawback' is governed by the provisions of Customs Act, 1962 and the Rules framed thereunder which clearly provide that drawback should be recovered, if sale proceeds have not been realized. There is no stipulation under the provisions of the Customs Act, 1962 or Rules framed thereunder that Reserve Bank of India or State Bank of India can allow any person to retain export incentives, like 'Duty Drawback'. 12. On behalf of the aforesaid respondents, it has next been contended that paragraph 6C.14 of Exchange Control Manual governs the mechanism for realization of export proceeds and also deals with the situation regarding write off of unrealized export bills and provides that in cases where the exporter has not been able to realize the outstanding export dues despite best efforts, he may approach the authorized dealer, who had handled the relevant shipping documents with appropriate supporting documentary evidence with a request for write off of the unrealized portion and the authorized dealer may accede to such request subject to conditions noted thereunder. Condition (g) under Parag....
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....in terms of the said circular, the authorized dealers are allowed to write off export bills on production of documentary proof of ECGC on getting confirmation claim in respect of outstanding bills. 16. On the basis of the arguments so advanced by the Counsel for the parties, the primary question to be decided by this Court is whether the customs authorities are competent to issue show cause notice to a exporter for production of evidence for realization of exports proceeds on its own or only on receiving the relevant information from Reserve Bank of India. 17. In order to adjudicate the said question, it would be apt to reproduce the relevant provisions. Rule 16A of the Customs and Central Excise Duties Drawback Rules, 1995 deals with the recovery of amount of Drawback where exports proceeds are not realized. Rule 16A of the 1995 Rules as it stood prior to amendment made on 15-2-2006, reads as under:- "16A. Recovery of amount of Drawback where export proceeds not realized. - (1) Where an amount of drawback has been paid to an export or a person authorized by him (hereinafter referred to as the claimant but the sale proceeds in respect of such export goods have not been....
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....wed under the Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such drawback shall be recovered in the manner specified below : Provided that the time-limit referred to in this sub-rule shall not be applicable to the goods exported from the Domestic Tariff Area to a special economic zone. (2) If the exporter fails to produce evidence in respect of realisation of export proceeds within the period allowed under the Foreign Exchange Management Act, 1999, or any extension of the said period by the Reserve Bank of India, the Assistant Commissioner of Customs or the Deputy Commissioner of Customs, as the case may be or Deputy Commissioner of Customs shall cause notice to be issued to the exporter for production of evidence of realisation of export proceeds within a period of thirty days from the date of receipt of such notice and where the exporter does not produce such evidence within the said period of thirty days, the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be or Deputy Commissioner of Customs shall pass an order to recover the amount of drawback paid to the claimant and the exporter shall r....
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....t of the Rule 16A as it stood prior to amendment. It may be noted that such words are missing in amended provision and there is no restrospectivity attached to it. 20. The provision of an Act is to be read in the manner as it exists in the statute book and it is a well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. The court cannot add words to a statute, or change its language, in particular when on a plain reading meaning becomes clear. 21. In Sri Jeyaram Educational Trust v. A. G. Syed Mohideen, AIR 2010 SC 671, the Apex Court while saying that a provision of statute should have to be read, as it is, in a natural manner plain and straight, without adding, substituting or omitting any words, held as under :- "While using the tools of interpretation, the Court should remember that it is not the author of the Statute who is empowered to....
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.... issuing any show cause notice prior to 1-8-2004 i.e. the time extended by the Reserve Bank of India. Counsel for the Union of India, on one hand, stated that the show cause notice dated 9-7-2001 was issued in light of legal provisions of Section 75 of the Customs Act and Rule 16A of the 1995 Rules, and on the other hand, it has been stated that if the sale proceeds of exported goods, in respect of which drawback allowed/paid is not realized, within six months, the amount of drawback becomes recoverable subject to extension of time by the RBI. Undisputedly, the RBI had extended realization period upto 1-8-2004 and this fact was brought to the notice of the customs authorities by the petitioner. Thus, the notice was issued when the RBI had already extended time period from time to time and finally upto 1-8-2004. 25. It would be useful to mention that Reserve Bank of India issued a circular 24th September, 2003 in exercise of powers conferred under Section 10(4) and Section 11(1) of the FEMA, 1999. It reads as under:- Export of Goods and Services - Payment of Claims by ECGC "Attention of Authorized Dealers is invited to Paragraph C.17 of the annexure to A.P. (DIR Series) Circ....
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....even if such exports were made and/or licences issued prior to 1-4-2002." 27. From the circular and Paragraph 2.25.3 of the Handbook, reproduced hereinabove, it is imminently clear that the authorized dealers are allowed to write off export bills on production of documentary proof of ECGC (Export Credit Guarantee Corporation of India) on getting confirmation claim in respect of outstanding bills. Thus the authorized dealers are vested with the power to write off export bills subject to the production of documentary evidence. The Circular which prohibits application of paragraphs 2.25.1 and 2.25.4 to the drawback scheme pertains to the year 2010 and as such it has no significance as the instant matter pertains to the year 2003-2004. At this juncture it would be apt to reproduce paragraph 5 of the counter affidavit sworn by Sanjiva Mohan Mishra, Manager in the Foreign Exchange Department on behalf of RBI :- "The Reserve Bank of India, on the recommendations of Authorized Dealer Bank granted extension of realization of the export bills up to 29-10-2001 and thereafter up to June, 2002. After that the Authorized Dealer Bank granted extension up to 1-8-2004 for realization of the ....