TaxTMI 
TaxTMI 
TaxTMI 
2015 (6) TMI 1108
X X X X Extracts X X X X
X X X X Extracts X X X X
....he exports made by them in the year 2002. The applicants have not submitted Bank Realization Certificate for realization of export proceeds in respect of the shipping bills. As the applicants failed to produce evidence for realization of export proceeds in respect of the said export goods within the period allowed under Section 8 of the Foreign Exchange Management Act, 1999 read with Regulations 2000 & Para 2.41 of Export Import Policy 2004-2009 and Section 75 of Customs Act, 1962 including any extension of such period granted by the Reserve Bank of India, a Show Cause Notice was issued on 8-1-2007. The Original adjudicating authority vide impugned Order-in-Original ordered recovery of Rs. 89,688/- along with appropriate interest under Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the Applicant was returned as "left". It is highly improbable because the Applicant is very much carrying on their business in the very same address and is dealing with the department from the very same address for the past 28 years. Further, without properly serving the Show Cause Notice and the PH intimation as contemplated in the Customs Act, 1962, the Adjudicating Authority has passed the impugned order in haste, which is not sustainable in law as the same has been passed in violation of principles of natural justice. Though this defence has been recorded in Para 2 of the impugned order, for the reasons best known to him, the lower Appellate Authority has not discussed about the said defence and has not given and findings to the sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....untant, which is a sufficient proof for realization of export proceeds. 5. Personal hearing was scheduled in this case on 24-3-2015, 15-4-2015, and 7-5-2015. Nobody attended the hearing. The applicant vide their letter dated 13-4-2015 requested to decide the case on merits by waiving personal hearing. 6. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Orders-in-Appeal. 7. Government observes that the applicant was initially granted drawback for exports made by them in the year 2002. Subsequently, show cause notice was issued to the applicant for recovery of already sanctioned drawback on the ground that applicant failed to produce the evidence for realization o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rave;-vis the statutory position. 8.1 The original authority confirmed the demand of drawback availed by the applicant on the ground that the applicant failed to produce proof of realization within stipulated time limit. On the contrary, the applicant has stated that they have submitted Chartered Accountant Certificate dated 10-5-2013 wherein, it has been certified that export proceeds in impugned cases has been realized and the same is in accordance with CBEC's Circular No. 5/2009-Cus., dated 2-2-2009. The relevant paras of the said circular are reproduced as under :- "__________________________ 2. In terms of the provisions of Section 75(1) of the Customs Act, 1962 read with sub-rule 16A(1) of the Customs, Central Excise Duti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement. 4. In view of this change, particularly considering that under the statute, the drawback payment is ultimately linked to the realization of export proceeds, It has become necessary for the Department to put in place an in-house monitoring mechanism to monitor the realization of such proceeds for exports made under the Drawback Scheme. Extensive consultations were held with field formations and trade & industry in this regard, and subsequently, the matter was examined by the Board. For monitoring the realization of export proceeds for drawback purposes, the Board has decided that the exporters will submit a certificate from the authorized dealer (s) or chartered accountant providing details of shipment which remain outstanding b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the date of receipt of such remittances. As such, the applicant failed to comply with requirements of said circular which in any case is found to be inapplicable for exports prior to 1-1-2004. Further, the said circular does not give dispensation from production of Bank Realization Certificates as proof of receipt of export proceeds. In this case, the applicant failed to produce Bank Realization Certificates even after 11 years from the date of exports. Under such Circumstances, the drawback availed by the applicant is liable for recovery in absence of submission of proof of foreign exchange realization, within the stipulated time limit. 8.3 Government further notes that it is a statutory requirement under Section 75(1) of Customs Act....