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[Order]. - The petitioner is aggrieved by the impugned order passed by
the First Respondent rejecting the Revision Application filed by the petitioner
under Section 129DD of the Customs Act, 1962. By the impugned order, the First
Respondent has affirmed the orders of the Second and Third Respondents im-
posing penalty and upholding penalty of Rs. 25,000/- on the petitioner.
2. The petitioner had exported goods and had filed duty drawback
claims under provisions of the Customs, Central Excise Duties and Service Tax
Drawback Rules, 1995 and claimed a total drawback due of Rs. 12,01,874/-. There
was some delay in getting foreign remittance and therefore, a show cause notice
dated 27-8-2010 was issued to the petitioner to show cause as to why penalty un-
der Section 117 of the Customs Act should not be imposed on the petitioner.
3. The petitioner replied to the show cause notice and appeared before
the original authority and the Third Respondent by an order, dated 16-5-2011
bearing a reference Order-in-Original No. 32 of 2011, dropped the proceedings
but at the same time has imposed penalty under Section 117 of the Customs Act,
and the reason given for imposing penalty is that though the Petitioner was giv-
en opportunity to produce Bank Realization Certificate (BRC) within stipulated
time, neither the Petitioner nor their authorized representative appeared or filed
any reply within stipulated time and therefore, penalty was imposable for non-
production of BRC within stipulated time.
4. On further appeal, the Second Respondent-Commissioner (Appeals)
rejected the appeal filed by the petitioner on the ground that though due draw-
back amount as an export incentive was granted immediately to the petitioner
after export, yet the petitioner did not submited BRCs in time which shows their
scant regard for statutory duties cast on it. The Second Respondent thus upheld
penalty imposed under Section 117 of the Customs Act, 1962.
5. On further revision, the First Respondent has rejected the revision
filed under Section 129DD of the Customs Act, 1962 by stating that on a plain
reading of the provision, it clears that for contravening any provisions of Cus-
toms Act where no express penalty is provided elsewhere, penal action shall be
attracted under this section. The First Respondent-Revisionary Authority has
further noted that the petitioner has submitted BRCs after stipulated time for
period of one year and therefore, the penalty is to be imposed on the petitioner
under Section 117 of the Customs Act was right.
6. The Learned Counsel for the petitioner submits that penalty under
Section 117 of the Customs Act will apply only where there is any failure or vio-
lation of any provisions of the Customs Act and the alleged failure in submitting
BRCs in time in terms of the Customs, Central Excise Duties and Service Tax
Drawback Rules, 1995 would not attract penalty under Section 117 of the Cus-
toms Act, 1962. Defending the impugned orders, Mr. S.R. Sundar, Learned
Standing Counsel submits that as per the Rule 16A(2) of the aforesaid rules if the
exporter fails to produce evidence in respect of realization of export proceeds
within a period allowed under the Foreign Exchange Managament Act, 1999, or
any extension of the said period by the Reserve Bank of India, the Assistant
Commissioner of Customs/the Deputy Commissioner of Customs, as the case
may be, shall cause notice to be issued to the exporter for production of evidence
of realisation of export proceeds within a period of thirty days from the date of
receipt of such notice and where the exporter does not produce such evidence
within the aforesaid period of thirty days, the Assistant Commissioner to Cus-
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