TaxTMI 
TaxTMI 
2024 (8) TMI 1357
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....Petitioner prays for setting aside the order-in-original being Order-in-Original No.135/2021-22/ADC/NS-I/Gr.I&IA/JNCH dated 17th August 2021 passed in F. No. S/6-Gen384/2018-19/Gr.7H [S/10-Adj-48/ 2021-22/Gr.I&IA]. 4. Under the Focus Product Scheme (FPS) implemented by the Directorate General of Foreign Trade (DGFT) under the Foreign Trade (Development and Regulation) Act, 1992 and Rules made thereunder and under Chapter 3 of the Foreign Trade Policy, a person, upon export of goods and upon realisation of the foreign exchange, as incentive for exports, is entitled to receive duty credit scrips. These scrips can be utilized to discharge customs duty payable on imports. These scrips are commonly referred to as FPS license and are freely transferable. There are no restrictions. 5. Against the exports made by petitioner during the year 2014, DGFT issued to petitioner FPS license dated 24th September 2014 for a value of Rs.20,65,447/-. As the FPS license was freely transferable, petitioner sold the FPS license to one M/s. Ashish Enterprises, Mumbai. M/s. Ashish Enterprises, Mumbai registered the said FPS license at Chennai Port on or about 30th September 2014. The said M/s. Ashish....
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....fore, as recorded in paragraph 3.2 of the show cause notice, since 27th September 2017 petitioner has been addressing various communications for refund of the amount paid stating that the amount was paid under protest. Petitioner is seeking refund of not only the customs duty and interest paid totaling to Rs. 29,73,352/- but is also seeking refund of Rs. 3,09,774/- that it paid towards the mandatory penalty. Petitioner is claiming refund of a total amount of Rs. 32,83,126/-. 8. Once this amount was paid, the alert on petitioner's IEC was removed. Thereafter, the Adjudicating Authority decided to adopt a shortcut approach. The Adjudicating Authority did not consider any of the submissions of petitioner or deal with any submissions made by petitioner during the personal hearing but passed a non speaking order simply saying that recovery has been made from petitioner and, therefore, nothing further has to be done. The Adjudicating Authority does not even give a finding against petitioner but simply relies on provisions of Section 28AAA of the Act to hold petitioner liable to pay the customs duty alongwith interest for excess utilization/mis-utilization of FPS license. The Adjudicat....
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....12, respondent no. 3 has observed that no further investigation has been conducted and only the findings of investigation report dated 9th May 2018 have been relied upon and he has given a finding that the license, which was re-registered at JNCH, was a forged one. Respondent no. 3 has also noted that the process of registration, as reflected in the public notice dated 5th February 2013, issued by the office of the Commissioner of Custom (Export) has inbuilt mechanism for prevention of such fraud. Respondent no. 3 has reproduced paragraph 2 of the public notice, as amended. Respondent no. 3 has accepted that in the present case, the scrip in original is still with its original user and hence, it is obvious that a forged scrip was registered at JNCH. Respondent no. 3 has also further concluded that the re-registered license was used by two importers in ICD Tughlakabad but neither of them have been summoned nor any verification at Tughlakabad end has been done to ascertain as to how and from whom they got the re-registered scrip and no effort in this direction is seen in the investigation. Respondent no. 3 has also observed that the investigation has been closed only because petition....
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....shall also investigate why none of those parties were neither summoned nor any verification at Tughlakabad end has been done and ascertain the truth. Respondent no. 2 shall also investigate as to how despite the procedure mentioned in Public Notice No. 4 of 2013 re-registration of license was permitted at JNCH. These directions are not exhaustive and the aim should be to find out the real truth and hold the guilty liable. 16. In view of the above, respondent no. 2 shall refund the amount of Rs. 32,83,126/- to petitioner together with applicable interest from 1st October 2017 till payment in accordance with law and this amount shall be paid to the account registered with the Department within four weeks of this order being lodged with respondent no. 2. At the time of refunding this amount, petitioner shall give a bond or indemnity as required by respondent no. 2 in accordance with law. 17. Rule made absolute. 18. Petition disposed. ============= Document 1 DISCUSSION AND FINDINGS 11. I have carefully gone through the records of the case and written and verbal submissions made by the noticee. The issue is regarding double utilization of FPS license issued to the n....
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.... the appellants in compliance of principles of natural justice. The donortment will ho at liberty to cauce necessary investigation as deemed fit Document 2 6.6 S/26-Gen-384/18-19 Gr. 7H S/10-Adj-48/2021-22 Gr. 1/IA In view of above, I think it just and proper to remand the matter to the Original authority for fresh decision following the principles of natural justice. Since, the matter is remanded to the OA on the primary issue of violation of natural justice, I refrain from giving decision on merits and all aspects of decision of the case on merits by the OA are kept open. The OA should decided the matter afresh after looking in the submission of the appellant, issue of SCN and after granting effective bearing to the appellant in compliance of principle of natural justice. The appellant is also directed to co-operate with the Original Authority and should appear before him for personal hearing as and when fixed. Accordingly the present show cause notice dated 3.03.2020 has been issued. 12. On going through the show cause notice I find that no further investigation has been conducted and only the findings of IR dated 09.05.2018 have been ....
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....scrip in the file. After verification of all details as mentioned above (a) to (e) Scrip will be registered on the same day or latest by the next working day. g) DC/ADC/Licence shall on random basis select 10% of scrips for verification of the genuineness of Shipping Bills and BRCȧETs by the licensing branch. For such selected scrips, TA Licence shall check the FOB value as per shipping bills in Annexure attached with scrip and actual realized as per copy ofA BRC's, and the admissible entitlement. The report of the TA (Licence) shall be noted in the file. Meanwhile AQ/Supdt (License) shall send file to Supdt (EGM) for crosschecking Annexure details with Customs EDI details of shipping bills/EGM filing status, and where relevant the product exported (relevant for FPS scheme) or destination country (relevant for FMS) and Supdt. (EGM) shall send report to AO/Supdt. Licence within two working days and AO/Supdt. Licence shall put up consolidated report to DC/ADC Licence on the next working day. h) However, if any discrepancies are noticed in the process of crosscheck and/or verification, the AO/Supdt (Licence) shall evaluate the courses of action a....