2023 (11) TMI 112

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....18, 25.06.2018 & 29.03.2022. Complete sale proceeds were although not realized within the prescribed time limit as the amounts realized on 25.06.2018 & 29.03.2022 were beyond the prescribed time limit in violation of the provisions of Notification No. FEMA-176/2008-RB dated 23.07.2008, but keeping in mind the fact that realization of money from foreign purchaser was beyond his control and has now realized in full and there is revenue loss to the government, minor omission of delayed realization should not cause substantive loss to him. Accordingly agreeing with contention of the appellant that he has realized the entire sale proceeds in respect of above mentioned shipping bill, I drop the demand and allow the appeal." 2.1 The appellant had exported certain goods under drawback shipping bill no.5669043 dated 26.04.2017 and drawback amount of Rs.88,041/- was paid to him. Since appellant failed to produce certificate evidencing the realization of sale proceeds within the period of 12 months from the date of export in terms of Notification No.FEMA-176/2008-RB dated 23.07.2008, a show cause notice dated 24.01.2020 was issued to him asking him as to why the demand of said duty drawbac....

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...."..... In order to facilitate this exercise, we set aside the impugned order of the Joint Secretary of the Union Government dated 19 December, 2013 and restore the proceeding back to the Revisional Authority for disposal afresh. The Revisional Authority shall verify whether the petitioner has in fact received all the export proceeds covered by the Shipping Bill in question within the time as extended by the Reserve Bank of India." Hon'ble High Court here while setting aside the order and sending back the same to Revisional Authority for disposal afresh stressed that to check whether export proceeds covered by the Shipping Bill in question within the stipulated time or not. In the instant case also, the appellant failed to produce any relevant document issued by the competent authority for granting extension of time to realise the payments of export proceeds beyond the prescribed time limit in terms of Notification No. FEMA-176/2008-RB dated 23.07.2008. 6. Hence, in the backdrops of the above facts, the order No.85-CUS/APPL /LKO/2023 dated: 12.01.2023 passed by the Commissioner (Appeals) for setting aside the impugned order is not legal and proper and ....

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....pse, it does not mean that Modvat credit could not be availed. 12. In Commissioner of Central Excise, Allahabad v. Hindalco Industries Pvt. Ltd., 2013 (293) E.L.T. 208, this Court after considering the provision of Rule 52A and 57G of the Rules held that Rule 57G of the Rules only prescribes the procedure for availing Modvat credit and did not affect any substantial right. In our opinion, the said decision is clearly applicable. 13. In the light of the aforesaid, we hold that Rule 57T of the Rules is only procedural in nature. We are also of the opinion, that Modvat credit cannot be denied on a technical ground that the procedure for availing Modvat credit was not followed at the material moment of time." 4.2 In the case of Sun Pharmaceutical Industries Ltd. [2015 (328) E.L.T. 792 (G.O.I.)], Government of India after quoting various decisions on the issue held as follows: "10. In this regard, Govt. further observes that rebate/drawback, etc., are export-oriented schemes. A merely technical interpretation of procedures, etc., is to be best avoided if the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given....

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..... 125 (G.O.I.)], Government of India observed as follows: "17. In this regard, Govt. further observes that rebate/drawback etc. are export-oriented schemes and unduly restricted and technical interpretation of procedure etc. is to be avoided in order not to defeat the very purpose of such schemes which serve as export incentive to boost export and earn foreign exchange and in case the substantive fact of export having been made is not in doubt, a liberal interpretation is to be given in case of any technical breaches. In Suksha International v. UOI, 1989 (39) E.L.T. 503 (S.C.), the Hon'ble Supreme Court has observed that an interpretation unduly restricting the scope of beneficial provision is to be avoided so that it may not take away with one hand what the policy gives with the other. In the Union of India v. A.V. Narasimhalu, 1983 (13) E.L.T. 1534 (S.C.), the Apex Court also observed that the administrative authorities should instead of relying on technicalities, act in a manner consistent with the broader concept of justice. Similar observation was made by the Apex Court in the Formica India v. Collector of Central Excise, 1995 (77) E.L.T. 511 (S.C.) in observing that ....