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Judgment
This writ petition impugns order dated 27th July, 2012 passed u/s 129DD of the Customs Act, 1962 (Act, for short). The impugned order upholds the order passed by the lower authorities directing the petitioner to refund duty drawback of Rs. 9,89,922/- along with interest in terms of Section 75A(2) read with Section 28AB of the Act. The adjudicating authority also imposed penalty of Rs. 1,30,81,962/- u/s 114AA of the Act, which was reduced to Rs. 9,86,922/- by the first appellate authority. The contention of the petitioner is that the Government of India has erred in appreciation of facts and has wrongly affirmed the orders passed by the lower authorities. The goods in question had already been exported and physical verification was, therefore, not possible. The petitioner had produced purchase bills issued by the foreign buyers, which clearly showed that what was required to be exported was brass candle sticks and not aluminium candle sticks. Export consignment was checked and found to be in order. Lastly, it is submitted that the authority has not dealt with the question of penalty and has not noticed that the petitioner had deposited Rs. 9,89,922/- even before the issue of show cause notice.
We have considered the said contentions. As far as duty drawback of Rs. 9,86,922/- is concerned, it is an accepted position that the same was paid. Subsequently, specific information was received from an informer that the petitioner had fraudulently claimed duty drawback by manipulating export documents such as shipping bills, invoices, packing lists etc. There were parallel or two separate sets of shipping bills, invoices, and packing lists. Premises of the petitioner was searched on 2nd December, 2009. Incriminating statement of the petitioner was recorded. At that time, the petitioner accepted his fault and on 5th December, 2009 deposited Rs. 10 lacs with the respondent on account of duty drawback wrongly claimed and paid. Orders passed by the original authority and the first appellate authority refer to specific bills, value as declared, the quantity in kilograms, discrepancy and the admissible duty drawback, which should have been paid. The discrepancies and difference has been clearly noted and mentioned in the said orders. We do not think there is any error or mistake in the orders passed by the authorities on the said aspect. The dispute is factual and there is no document or material to show that the discrepancies pointed out by the authorities require any interference on the ground that the decision is perverse and the findings recorded could not have been reached by a reasonable and fair adjudicating authority.
On the second issue with regard to export of candle sticks, again the authorities have not only noticed and gone on the brochure or catalogue of the petitioner, but have also referred to the discrepancies in weight and recorded their findings that the weight of aluminium candle sticks would be much less than the weight of brass candle sticks. Again reliance has been placed on the duplicate papers/documents. The findings recorded on the said aspect are also factual and we do not think they require any interference by this Court.
The last aspect pertains to penalty. As already noticed above, the penalty was reduced by the first appellate authority to Rs. 9,86,922/-, i.e., the value of the duty drawback wrongly or fraudulently availed of by the petitioner. Learned counsel for the petitioner submits that this aspect has not been adverted to or examined by the Central Government in their order u/s 129DD of the Act. The order is silent. He submits that the petitioner had paid the entire amount on 4th December, 2009 and show cause notice was issued subsequently on 10th June, 2010. He argues that u/s 114A if penalty is deposited within the stipulated statutory time, the penalty payable is 25%. He submits that though this Section is not applicable, it can form the basis for penalty u/s 114AA, which prescribes the maximum limit and no lower limit is prescribed. We need not examine the said contention on merits as we find that the Central Government has not gone into and examined the said aspect. The issue/question remained unanswered and has not been decided. We pass a limited order of remand directing the Central Government to consider the question of quantum of penalty in accordance with law. The petitioner will be entitled to oral hearing and put forward his case for imposition of lower penalty before the Central Government. The writ petition is disposed of.