TaxTMI 
TaxTMI 
2025 (11) TMI 141
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.... shipments of childern's garments through ICD, Tuglakabad, New Delhi during November 1993 to June 1994 and 9 export shipments of ladies garments through Mumbai Customs House during September 1994 to October 1994. 3. During the course of examination of goods at the time of export, the proper officer formed the opinion that the goods have been highly over-invoiced with the intention of claiming inflated amount of drawback. Though the export was allowed provisionally but the market enquiries were conducted. Based whereupon the Assistant Collector of Customs, ICD passed the assessment order No. 21/1994 dated 16.05.1994 and 49/1994 dated 27.07.1994 reducing the value of Rs. 210/- per set for the purpose of drawback. The said order was appealed by the appellant. However, the Collector (Appeals), New Delhi vide Order-in-Appeal No. 135/ICD/1994 dated 27.01.1995 and 5/ICD/1995 dated 27.01.1995 rejected the appeals. The appellant preferred revision application against the said Order-in-Appeal. Vide Order No. 466467/1995 dated 16.08.1995, the matter was remanded to Assistant Commissioner for de novo adjudication after making fresh enquiries from reputed exporters in association with the re....
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....ed to the jurisdictional adjudicating authority directing to re-adjudicate the issue relating to 9 shipments of ladies garments. Pursuant to the said directions of remand the impugned order in original No. 6/88/2005 dated 13.07.2005 was passed, disallowing the drawback amount of Rs. 31,66,822/- under Section 75 read with Rule 16 & 16A of the Customs and Central Excise Duties Drawback Rules, 1995. Ordering appropriation of the said amount as it was already refunded by the importer-appellant and by ordering confiscation of the goods (ladies garments) of the 9 shipments in question. Being aggrieved, the appellant is before this Tribunal. 6. I have heard Shri A.K. Jain, learned counsel for the appellant and Shri Rohit Issar, learned Authorized Representative for Revenue. 7. Learned counsel for the appellant has submitted that the impugned order suffers from the vice of jurisdiction. It is submitted that the show cause notice was not issued by the proper officer as is required under Drawback Rule 16/16A but by ADG, DRI, New Delhi. It is submitted that decision of Hon'ble Apex Court in the case of Cannon India Pvt. Ltd. Vs. Commissioner of Customs [2024 (265) ELT 17 (SC)] does not ....
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.... orders already passed by the GOI (RA) on 31.08.1998 and by CC (Appeals), Mumbai on 31.03.1999 allowing the drawback on FOB value basis in respect of all the subject 9 shipments. 8. The learned Department Representative while rebutting these submissions mentioned that goods exported from Bombay in respect of 9 shipping bills had not reached Moscow, which is confirmed by the report of the Russian Customs as there were admittedly delivered in Dubai to M/s M.K. International as confirmed by the delivery order issued by the agent of the shipping company. As per the Reserve Bank of India's Circular no third country exports were permitted to be financed out of the funds from repayments of the state credit. M/s Texcomash Exports, the appellant had received the remittance in India rupees out of this fund of the state credit. Therefore, there is clear violation of the Reserve Bank of India Circular which was issued under Section 73(3) of the Foreign Exchange Regulation Act, 1973. Contravention of this Circular makes goods exported by M/s Texcomash Exports liable for confiscation under Section 113(d) of the Customs Act. The judgment cited by the exporter will not be applicable in this cas....
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....,01,305/- Rs. 2,23,760/- and Rs. 39,56,017/- total amounting to Rs. 88,81,082/- was paid to the appellant vide separate cheques dated 01.06.1995, 24.08,1995 and 22.08.1995. 11. Later, at the stage of subsequent investigation and in response to a summon dated 19.02.1996, to exhibit the cooperation and to avoid any situation of doubt regarding his bona fide, the appellant had paid back the drawback amount to the Government by way of two Demand Drafts of Rs. 88,87,082/- and Rs. 31,66,822/-. At the conclusion of the investigations, the department observed that the market value of the garments exported by the appellant was less than the drawback claimed. Hence the drawback amount was proposed to be inadmissible to the appellant in terms of Section 76(1)(b) of the Customs Act. The said proposal was finally adjudicated by this Tribunal vide Final Order No. 355/2005 dated 15.03.2005 holding appellant entitled for the drawback, however, with respect to 29 shipments of children garments only. With respect to the 9 shipment having consignment of ladies garments, the matter was remanded back for the reason that the adjudicating authority in the order in original No. 56/2000 dated 28.11.2003....
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.... of no third country exports the RBI would not have released the remittance in Indian rupees out of the state credit funds. This observation, to my opinion is sufficient to falsify the findings in the impugned order in original. 16. It is also observed from the show cause notice itself that there has been an understanding that 9 containers shipped by Texcomash Export from Delhi to Moscow were to be taken delivery in Dubai itself on surrendering the original bills of landing by the party concern. It was observed to be a normal practice and as per law also delivery could be effected if the original bills of landing were surrendered (para 30 of show cause notice) recites the same. Not only this there were the Landing certificate issued with respect to these consignments as well that too from the Russian company. Any forgery if revealed during a further investigation being committed by the Russian company vis-a-vis the Landing certificate in the light of Drawback Rules in India is highly insufficient to deny the claim of drawback specifically when the goods have crossed Indian territory and to reach to a place outside India. Department has failed to produce any statutory provision o....