TaxTMI 
TaxTMI 
2016 (7) TMI 467
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt proceeds, Show Cause Notice dated 21.03.2012 was issued to them, inter-alia, demanding the ineligible drawback along with interest thereon. After following the due process of law, the lower authority, vide his Order-in-Original No.457/2012 dated 15.05.2012 confirmed the demand amounting to Rs. 5,03,240/- (equivalent to the drawback sanctioned to them) along with the applicable interest thereon under relevant provisions of the Customs Act, 1962. Penalty amounting to Rs. 50,000/- was also imposed under the provisions of Section 117 of the Customs Act, 1962. In compliance, the respondent repaid the said ineligible drawback along with interest and the penalty amount on 31.01.2013. Meanwhile they received the requisite certificate evidencing realization of export proceeds. Since the certificates demonstrated that the export realization had been received within a period of one year from the relevant date, they filed a refund claim dated 09.02.2013 and the same was rejected by the lower authority as not in proper format. Again the respondent filed the refund claim on 13.05.2013 enclosing BRCs for the refund of said repaid drawback amount in terms of Rule 16 (4) of the Customs, Central ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Customs, Central Excise Duties and Service Tax Drawback Rules 1995. This ground was not cited by the Adjudicating Authority in Order-in-Original. This ground was also not taken before the Commissioner (Appeals) by filing cross objection. The amendment was not in the knowledge of the respondent. The copy of the appeal was sent to the department and also the notice of personal hearing was marked to the department. The department did not point out the amendment made to the said Rule before the Commissioner (Appeals) and did not file any cross objection or filed any submission during the personal hearing. No representative of the department attended the personal hearing. Now it is not open to the department to take this ground before the Revisionary Authority. 5.2 The respondent submits that in a similar case of confirmation Of demand of drawback due to non-production of Bank Realization Certificates(BRCs), the department accepted the Order-in-Appeal and allowed the respondent to produce the BRCs before the Assistant Commissioner. In this case, only because the respondent had paid back the drawback sanctioned when it was demanded, he should not be penalized citing procedural infr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Drawback Rules, and the exporter produces evidence about such realization within one year from the date of such recovery of the amount of drawback, the amount of drawback so recovered shall be repaid by the Assistant Commissioner of Customs or Deputy Commissioner of Customs to the claimant so recovered shall be repaid by the Assistant Commissioner of Customs or Deputy Commissioner of Customs -to the claimant. 5.6 The Assistant Commissioner did not discuss the applicability of Rule 16(A)(4) of the Customs, Central Excise Duties and Service Tax Drawback Rules 1995 under which the refund claim was filed. He also did not point out any amendment to the said Rule. The Assistant Commissioner did not hold that due to the amendment of Rule 16(A)(4) by-Notification No.49/2010-Cus (NT) dated 17.06.2010, the-refund claim -is being rejected. When the refund claim was not rejected on this ground of amendment, and when the department did not take this ground before the appellate authority neither by filing cross objection nor by representing during personal hearing, the department is precluded in taking this ground before the revisionary authority and it is not legally sustainable. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he respondent failed to submit proof of export realization within 3 months from date of realization and as such, liable to pay back amount of already sanctioned drawback. The Commissioner (Appeals) has allowed the refund of drawback recovered from the respondent under the provisions of erstwhile Rule 16A (4) ibid. The respondents have given various contentions against ground of Revision Application. The main issue for decision is whether refund claim under Rule 16A (4) is admissible or not. In view of rival contentions, Government proceeds to decide the case in light of statutory provisions relating to drawback. 9.1 Government notes that Rules 16(A)(4) has been amended vide Notification No.49/2010-Cus (NT) dated 17.06.2010 and the said rule reads as under after amendment: (iv) In rule 16A, in sub rule (4), - (a) for the words "within one year from the date of such recovery of the amount of drawback'; the words "within a period of three months from the date of realization of sale proceeds shall be substituted; (b) after the words 'to the claimant", the words 'Provided the sale proceeds have been realized within the period permitted by the Reserve Bank of Indi....