TaxTMI 
TaxTMI 
2022 (11) TMI 1286
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....rit petition was issued on 24.08.2021. 2.1 Since then, pleadings in the writ petition stand completed. 3. The respondent nos.1 to 3/revenue [hereafter referred to as "official respondents"] pursuant to the various orders of this Court, have filed several additional affidavits. 4. Rejoinder has also been filed by the petitioner in the matter. 5. We have heard the counsel for the parties at length. 6. The submissions on behalf of the petitioner have been advanced by Ms Vibha Datta Makhija, learned senior counsel, while Mr Satish Kumar, learned senior standing counsel made submissions on behalf of official respondents/revenue. 7. The broad facts which have emerged in the matter are as follows: 8. The respondent no.1 issued the impugned communication to the banker of the petitioner i.e., IndusInd Bank Limited [hereafter referred to as the "bank"], which in substance, prevented the bank from making any debit entries in the account maintained with it by the petitioner. 8.1 Furthermore, it was clearly indicated in the impugned communication, that no "outward transactions" would be permitted in the said account, until further communication was received in that behal....
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....cessed, were 6 shipping bills, which represent duty drawback amounting to Rs.14,47,817/-. 15.1 Because investigations were on, the amount claimed against 6 shipping bills has not been sanctioned, and hence remittance of money against 6 shipping bills remains on hold. 16. Thus, at the heart of the matter, is the amount which represents duty drawback against the 20 shipping bills, which stands credited to the subject bank account maintained by the petitioner with respondent no.4 i.e., the bank. 17. We may note, that the record, as presently made available to us, discloses that a provisional attachment order was issued on 23.08.2021, which was received by the petitioner's bank on 06.09.2021. 17.1 The record also reveals, that before the expiry of six (6) months, the official respondents/revenue extended the tenure of provisional attachment qua the petitioner's bank account, by issuing a second provisional attachment order on 18.02.2022. 17.2 The provisional attachment order dated 18.02.2022 purported to extend the timeframe of the provisional attachment order dated 23.08.2021 by further six (6) months, in terms of the proviso appended to Section 110(5) of the Act. 18....
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....the nature of action when the petitioner, in the first instance, approached the Court] as to whether extension of time was sought from the concerned authority for receipt of sale proceeds against the subject exports, and if it was, what was the outcome of such request. 27. Section 75 of the Act, in which the provision for grant of duty drawback is embedded, is founded on the fact that sale proceeds are received by or on behalf of the exporter within the timeframe allowed under the Foreign Exchange Management Act, 1999 ["FEMA"], else it is deemed to never have been allowed^1, save and except in such circumstances or conditions as is provided in the rules framed by the Central Government. 27.1 The power to frame rules is provided in sub-section (2) of Section 75 of the Act. 28. For the sake of convenience, the aforementioned section, along with the relevant proviso is extracted hereunder: "75. Drawback on imported materials used in the manufacture of goods which are exported (1) Where it appears to the Central Government that in respect of goods of any class or description [manufactured, processed or on which any operation has been carried out in India] [,b....
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....e sake of convenience, the said Rule is extracted hereafter: "18. Recovery of amount of Drawback where export proceeds not realised. - (1) Where an amount of drawback has been paid to an exporter or a person authorised by him (hereinafter referred to as the claimant) but the sale proceeds in respect of such export goods have not been realised by or on behalf of the exporter in India within the period allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such drawback shall, except under circumstances or conditions specified in sub-rule (5), 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, shall cause notice to be i....
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....orporation of India Ltd. under an insurance cover and the Reserve Bank of India writes off the requirement of realisation of sale proceeds on merits and the exporter produces a certificate from the concerned Foreign Mission of India about the fact of nonrecovery of sale proceeds from the buyer, the amount of drawback paid to the exporter or the claimant shall not be recovered." 30. A careful perusal of sub-rule (1) of Rule 18 of the 2017 Rules shows, that where duty drawback has been paid to an exporter, or a person authorized by him, but the sale proceeds in respect of such exports have not been realized by or on behalf of the exporter located in India, within the period allowed under the Foreign Exchange Management Act, 1999 [in short "FEMA"] or within such time as extended by the concerned authority, such drawback is required to be recovered [except in circumstances or conditions specified in sub-rule (5)] in the manner specified in the said Rule. 30.1 As is obvious, this provision, broadly, replicates what is provided in the second (2nd) proviso appended to Section 75(1) of the Act. 31. As noticed above, insofar as this case is concerned, there is no dispute, that sale....