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writes off the requirement of realization of sales proceeds, the drawback amount
sanctioned earlier to the exporter are not to be recovered.
It would appear that the sub-rule (5) of Rule 16A of Customs, Excise Du-
ty Drawback Rules, 1995 was introduced with effect from 11-4-2011 thus the ex-
porters who intended to take the privilege of these provisions could be benefited
with effect from 11-4-2011 onwards only i.e. from the date of issuance of Notifica-
tion No. 30/2011-Cus., dated 11-4-2011. However the judgment of Hon’ble Apex
Court in the case of Surinder Singh v. Union of India reported in 2016 (340) E.L.T.
97 (S.C.) the Hon’ble Supreme Court held that the Rule 16A is clarificatory in na-
ture and the provisions of recovery of Drawback already existed under Section
75 of the Customs Act, 1962 and therefore the Rule 16A has retrospective effect.
As such in the light of Ruling given by the Hon’ble Apex Court, the Rule 16A has
retrospective effect which means it was applicable from 6-12-1995 when the pro-
vision of Rule 16A was introduced and not from the date 11-4-2011 when the
sub-rule (5) was implemented.
The copy of relevant para 15 of Hon’ble Apex Court judgment in the case
of Surinder Singh is produced below :
15. After hearing Learned Counsel for the parties, we are of the opinion that
the impugned order passed by the High Court does not suffer from any in-
firmity and, therefore, no interference therein is called for. Suffice is to point
out that the effect of Section 75 of the Customs Act, 1962, is that in case val-
ue/price of the goods exported is not received, it is to be presumed as if no
drawback was ever allowed and in that view of the matter, the duty draw-
back which was taken by the appellant had to be refunded. That would be the
position even de hors Rule 16A of the Duty Drawback Rules, 1995. Therefore,
we are inclined to agree that Rule 16A is a clarificatory provision clarifying the posi-
tion of law which already exists in the form of Section 75 of the Customs Act, 1962,
and therefore, will have retrospective effect. The appeal is, accordingly, dismissed.
In view of the above the provisions of Rule 16A(5) could be availed by the ex-
porters where exports were made under ECGC scheme and export proceeds
were not realized during the period of exports from 6-12-1995 onwards and shall
not be restricted to the period after 11-4-2011 only when the notification No.
30/2011-Cus. was issued.
The Board may take cognizance of the above mentioned judgment of
Hon’ble Apex Court and may issue suitable guidelines.
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