2016 (2) TMI 320

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....ck Rules, 1995. Since the applicant had not produced documentary evidences for realization of the sale proceeds for Rs. 64,33,993/- against the said Shipping Bill, it appeared that the said applicant had contravened the provisions of Rule 16A of the said Rules read with Second proviso to Section 75(1) of the Customs Act, 1962 inasmuch as he had not produced evidences for realization of the sale proceeds for Rs. 64,33,993/-. After due process of law, the adjudicating authority demanded the ineligible drawback already availed by the applicant with applicable interest. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeal), who rejected the same. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant has filed this Revision Application, under Section 129DD of Customs Act, 1962 before Central Government on the following grounds : 4.1 The applicant submits that the sub-rule (5) of Rule 16A of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 introduced as per Notification No. 30/2011, dated 11-4-2011 states that the drawback paid shall not be recovered on compliance of the following : ....

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....mbu & Co. v. U.S. Dept. of Revenue [2010 (20) S.T.R. 591 (Mad.)]. 4.5 It is submitted that it is a settled law that in procedural matters, the law prevailing on the date of issue of show cause notice has to be taken into consideration. It is further submitted that the Hon'ble Supreme Court in the case of Rochiram & Sons v. Union of India reported in 2008 (226) E.L.T. 20 (S.C.) has held that substantive laws are generally not retrospective unless specified contrary by legislative, whereas procedural laws may be retrospective unless shown to the contrary. In the present case by way of inserting sub-clause (5) to Rule 16A, the Central Government has listed out the situation where the drawback sanctioned need not be surrendered on complying certain procedural conditions. Therefore, it is undisputable that Rule 16A is procedural in nature. The Hon'ble High Court of Bombay in the case of Uttam Steel Ltd. v. Union of India [2003 (158) E.L.T. 274 (Bom.)] has held that any amendment in procedural law shall have retrospective effect even if it is not specifically mentioned that the amendments has retrospective effect. 4.6 It is submitted that it will be invidious distinction,....

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....amendment made in Rule 16A by insertion of sub-rule (5) vide Notification No. 30/2011, dated 11-4-2011. However, lower authorities have held that eligibility under said sub-rule (5) of said Drawback Rules, 1995 which was introduced only w.e.f. 11-4-2011 vide Notification No. 30/2011, dated 11-4-2011, is applicable only for exports made after 11-4-2011 and not before that and as such, exports made by the applicant during period of February/March, 2008 are not eligible for benefit under above said provision. In view of rival contentions, Government now proceeds to examine various statutory provisions relating to this case. 8.1 The applicant has placed heavy reliance on sub-rule (5) of the Rules 16A of the said Customs, Central Excise Duties and Service Tax Drawback Rules, 1995, which was introduced vide Notification No. 30/2011, dated 11-4-2011. The said notification reads as under : "[To be published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i)] Government of India Ministry of Finance (Department of Revenue) Notification No. 30/2011-Customs (N.T.)              &e....

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....th February, 2011 vide number G.S.R. 80(E), dated the 10th February, 2011." The important aspects of the said Notification No. 30/2011, dated 11-4-2011, by which said sub-rule (5) of Rule 16A was introduced are as follows : (a)     Vide Clause 1(2) of the said Notification, the above said amendment comes into force on the date of their publication in the official Gazette i.e. only from 11-4-2011; (b)     The benefit under sub-rule (5) of the Rule 16(1) of the said Rules, 1995 is applicable only on cumulative fulfilment of certain conditions namely : (i)       Sale proceeds have not been realized by the exporter within the period allowed under FEMA, 1999, (ii)     Non-realization is compensated by Export Credit Guarantee Corporation of India Ltd. under an insurance cover, (iii)    Reserve Bank of India writes off the sale proceeds on merits and (iv)    The Foreign Mission of India issues a certificate as to the non-recovery of sale proceeds from the buyer. 8.2 As mentioned in part (a) above, the amend....