TaxTMI 
TaxTMI 
2012 (8) TMI 900
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.... No. Order-in-Appeal No./Date Order-in-Original/Date 1. 375/41/DBK/11-RA-Cus. M/s. Malvika Impex CC(A)/Exp/49/11 dated 28-2-2011 52/CRM/ACE/2010 dated 28-6-2010 2. 375/42/DBK/11-RA-Cus. M/s Shivam (UZ) International CC(A)/Exp/48/11 dated 28-2-2011 51/CRM/ACE/2010 dated 21-6-2010 2. Brief facts of the case are that on the basis of intelligence regarding fraudulent drawback claim filed by certain exporters and availing undue DBK incentives by exporters including the applicants, investigations were carried out. On investigation it was detected that the applicants are claiming duty drawback (Drawback of Central Excise Portion) by providing wrong and incorrect information, which is required to be furnished as per Drawback Circul....
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.... applicant for supply of complete set of shipping bills thereof depriving him of his valuable right to contest the show cause notice and the allegations levelled therein by leading cogent evidence. The authorities below have gravely erred in law in ignoring the contention of the applicant that the show cause notice is hopelessly time barred as the same has been issued beyond the mandatory period of 6 months. It is submitted that the respondent has failed to lead cogent, direct and definite evidence of any wilful misstatement or suppression of facts by the applicant and therefore the extended period is not invocable and the proceedings are barred by time and liable to be set aside on this ground alone. 4.2 The Authorities below have er....
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....he show cause notices against the applicants. The same is therefore misconceived and liable to be set aside. 4.6 The Authorities below have gravely erred in imposing penalty under Section 114 and Section 114AA of the Customs Act, 1962 on the applicant as the goods have already been exported and the same are not liable to confiscation. The invocation of Section 113(d) is wrong as the goods are not prohibited under the Customs Act or any other law for the time being in force. Similarly Section 113(h)(ii) is also not invokable as there is no clear, cogent and material evidence of any wilful misstatement by the appellant. 5. Personal hearing was scheduled in these cases on 20-4-2012, 31-5-2012 and 29-6-2012. Personal hearing held on....
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....d any Cenvat facility for garments manufactured by them. In these cases during investigation, the veracity of said declaration furnished by applicants for availing drawback at higher rate could not be verified. The applicants did not submit the relevant annexures containing the requisite certificate despite issuance of summons. They neither appeared before Customs nor submitted the requisite documents. Rather they asked the Customs to procure said documents from their CHA. The printout of the Shipping Bills were retrieved from the EDI data. The investigation carried out could not verify the veracity of said certificates. Therefore the drawback claim were rightly denied. 8. Government notes that vide C.B.E. & C. Circular No. 16/2009-Cu....
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....s Ltd. v. CCE, Coimbatore - 2007 (208) E.L.T. 321 (S.C.). In this regard, it is observed that the circular in question is not a clarificatory circular which has retrospective effect. Government after examining the recommendations of drawback committee, decided to extend the said benefit to merchant exporters henceforth. The categorically mention of henceforth in the circular cannot ignored as the said word has made this circular effective prospectively. The fact of the case law cited by applicant are not same and therefore ratio of said judgment cannot be made applicable to this case. Government notes that Hon'ble Supreme Court has held in the case of M/s. Paper Products Ltd. v. CCE - 1999 (112) E.L.T. 765 (S.C.) and in the case of CCE, Va....