AKS APPARELS Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner-Aks Apparels, sole proprietorship of Anup Joshi, by this writ petition has prayed for quashing/setting aside of Order No.243/12-Cus dated 11th June, 2012 passed by the Government of India in exercise of power under Section 129DD of the Customs Act, 1962 (Act, for short). The said order affirms the view taken by the first appellate authority and the adjudication authority that the petitioner herein should refund duty drawback of Rs.4,00,801/-.

(2.) The petitioner herein is an exporter and during the period November, 2006 to June, 2007, had exported readymade garments of FOB value of Rs. 82,74,303/- against shipping bills. The export itself is not disputed and there is no quarrel or issue with regard to the quantum of exports. The petitioner had applied for refund of excise duty portion on the imports as drawback and payment of Rs.4,00,801/- was sanctioned and made in 2007 (exact date is not stated). Subsequently, after about 3 years on 13th January, 2010, a show cause notice was issued that the said drawback had been wrongly paid and it was admissible only if the petitioner was a manufacturer exporter or had got the garments manufactured under job work. The claim was not admissible as the petitioner had procured the goods for export from traders in open market. The impugned order records that the petitioner had made false and wrong declaration in the drawback form as he had used the word "supplier" to avail the drawback. There was suppression of facts. Concession granted to merchant/exporters vide CBEC Circular No.16/2009- Cus dated 25-5-2009 on the recommendation of Drawback Committee was not retrospective.

(3.) It is clear from the impugned order as well as the order passed by the first appellate authority and the adjudicating authority that the petitioner had not used the word "manufacturer" or stated that he had got the goods/garments manufactured on job work. Thus, it can be argued that there was no fraud, suppression of facts or misdeclaration by the petitioner. The word "supplier" used in the form clearly indicates that the goods were purchased from third parties. The show cause notice itself records that the petitioner had not filed details of the job workers or evidence of supporting manufacturer, yet the claim was accepted and payment of drawback was made.