H.N. Devani, J.

1. In this appeal under Section 130 of the Customs Act, 1961 (the Act), the Appellant-Assessee has challenged order dated 7-5-2008 (2008 (228) E.L.T. 205 (Tri.-Ahmd.)) made by the Customs, Excise & Service Tax Appellate Tribunal (the Tribunal), proposing the following five questions:

(a) Whether in the facts and circumstances of the case, the Tribunal erred in not appreciating that the contents of the test report dated 27-6-2010 pertaining to samples drawn on 29-5-2000 could not have been considered and relied upon for the purpose of coming to a conclusion as regards goods exported much prior thereto, i.e. between 24-1-2000 to 31-3-2000

(b) Whether in the facts and circumstances of the case, the Tribunal erred in holding that the drawback sanctioned was liable to recovery under Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 which contemplates recovery in case of erroneous and/or excess drawback, beyond the period of limitation prescribed under Section 28 of the Act, when, admittedly, there is no case whatsoever against the Appellant to the effect that there was any suppression and/or misdeclaration by the Appellant

(c) Whether in the facts and circumstances of the case, the Tribunal erred in holding that the product exported by the Appellant "heat resistant rubber tape" was not covered within the description "heat resistant rubber tension tape (strip rubber elastic)" when the Government of India had itself clarified on 10-12-2001 regarding a similar product "head resistant latex rubber thread" that drawback should be made available

(d) Whether in the facts and circumstances of the case, the Tribunal erred in coming to a conclusion that "heat resistant rubber tape" and "heat resistant rubber tension tape" had different uses and characteristics, without there being any evidence on record

(e) Whether in the facts and circumstances of the case, the Tribunal erred in not appreciating that in absence of challenge to the orders sanctioning drawback, which were quasi judicial orders, no proceedings for recovery thereof could have been initiated

2. The Appellant filed drawback claim of Rs. 10,80,000/- in respect of the goods being "Heat Resistant Rubber Tape" exported under Shipping Bills No. 1007387 to 1007390, all dated 29-5-2000 before the Deputy Commissioner (Drawback). After filing of the aforesaid drawback claim in respect of the shipping bills dated 29-5-2000, a sample was drawn by the concerned officer which was sent for the purpose of testing to the Customs & Central Excise Laboratory, Kandla. Pursuant to the test report, inquiries were made by the concerned authority regarding drawback claims dated 2.9-5-2000 filed by the Appellant during the course of which, statements of certain persons came to be recorded. The investigation was followed by issuance of a show cause notice dated 7-4-2008, proposing to deny/disallow drawback claims filed by the Appellant, to deny/disallow and recover drawback claims to the tune of Rs. 64,80,000/- covered under various Shipping bills erroneously granted and proposing to impose penalty under Section 114(i) and (ii) of the Act. The show cause notice came to be adjudicated vide Order in Original dated 26-12-2003 whereby the demands raised therein came to be confirmed along with rejection of drawback claim. A penalty of Rs. 5 lacs also came to be imposed on the Appellant and the goods in question were ordered to be confiscated. Against the said order, the Assessee preferred appeal before the Tribunal which came to be decided vide the impugned order dated 7-5-2008 whereby, the impugned order came to be upheld except for reduction of penalty from Rs. 5 lacs to Rs. 3 lacs.

3. Mr. Uday Joshi, learned advocate for the Appellant vehemently assailed the impugned order of the Tribunal, submitting that the basis of the show cause notice is the test report indicating that the goods exported by the Petitioner can be considered as "heat resistant rubber elastic tape" and not "heat resistant rubber tension tape" as described in the Drawback Schedule. Adverting to the facts of the case, it was pointed out that in the present case, the test report as regards the sample drawn on 29-5-2000 relating to the shipping bills dated 29-5-2000 has been made applicable to goods already exported by the Appellant under cover of 18 shipping bills filed for export of goods during the period from 24-1-2000 to 31-3-2000, to submit that the test report made in respect of samples drawn subsequently, could not have been made applicable to the goods manufactured/exported during the period prior thereto. Inviting attention to the test report, it was submitted that the product in question elongates under heat and is treated as nothing but "heat resistant rubber tension tape". According to the learned advocate for the Appellant, the Tribunal had erred in holding that the product exported by the Appellant was "heat resistant rubber tape" whereas the description of the product mentioned in the Drawback Schedule was "heat resistant rubber tension tape" (strip rubber elastic) and that, therefore, drawback was not available in case of the Appellant. The Tribunal found that in the facts of the case, the description of goods given in the shipping bills tallied with the goods actually exported and that it was not the case of the Department that there was willful mis-declaration of description. It is also found that there was a mistake on the part of the Department in having allowed drawback in case of earlier shipping bills. It was submitted that the Tribunal having found that it was not the case of the Department that there was mis-declaration of description and that the description given in the shipping bills tallied with the goods actually exported, the extended period of limitation could not have been made applicable in the present case. It was submitted that the show cause notice in the present case came to be issued on 17-4-2002 calling upon the Appellant to show cause as to why the drawback already granted relating to shipping bills filed during the period 24-1-2000 to 31-3-2000 should not be recovered. Thus, the present case being one of recovery, the limitation provided under Section 28 of the Act was required to be read into the provisions of the rule. This having not been done by the Tribunal, the impugned order of the Tribunal is not sustainable.

4. The facts as emerging from the record of the case are that, on the basis of intelligence of fraudulent/incorrect availment of drawback claim, investigations were conducted in respect of drawback claims filed by the Appellant. Upon inquiry being made, it appeared that:

(i) M/s. Ratan Lila & Co. Ltd. claiming to be manufacturer of Heat Resistant Rubber Elastic Tape was not the real manufacturer of said export goods. The said unit did not have any plant and machinery and did not exist at the given address. They had misstated to the Central Excise Authorities as admitted by Shri C.P. Gupta, Director of the company in his statements made before the Customs Authorities that they had not manufactured any goods and had only issued invoices as paper transactions for 1/2% commission in connivance with Shri K.K. Jain.

(ii) Shri C.P. Gupta, Director of M/s. Ratan Lila & Co. Ltd. in his statement dated 20-9-2000 claimed that no machinery is required for manufacture of Heat Resistant Rubber Elastic Tape except scissors. Contrary to this, they themselves had declared in the declaration under Rule 173B of Central Excise Rules, 1944 (the C. E. Rules) filed with Central Excise authorities that extruder is required for manufacture of Heat Resistant Rubber Elastic Tape.

(iii) Though extruder is required for manufacture of Heat Resistant Rubber Elastic Tape as mentioned in the declaration filed under Rule 173B of the C. E. Rules, the same was never installed in the "factory" of the manufacturer M/s. Ratan Lila & Co. Ltd. as confirmed in the affidavit dated 24-12-96 filed by the said manufacturer regarding list of plant and machinery. Thus, M/s. Ratan Lila & Co. Ltd. had misstated the fact of manufacture of Heat Resistant Rubber Elastic Tape.

(iv) The manufacturer had not manufactured the goods in question at the given address. However, for the sake of paper transaction they had furnished documents in connivance with the exporter to avail drawback of customs and central excise portion, which was evident from the fact that Shri C.P. Gupta in his statement dated 10-8-2000, 21-9-2000 and 23-2-2001 had admitted that they had not manufactured any goods, but had, only issued invoices.

(v) The merchant exporter had failed to submit a certificate to the effect that no MODVAT has been availed of by the manufacturer of the goods.

(vi) The exporter had not furnished Bank Realization Certificate in respect of export goods.

(vii) The merchant exporter had in connivance with the manufacturer entered into only paper transaction showing that goods were procured from M/s. Ratan Lila & Co. Ltd. Shri V.M. Jain, Director of M/s. Dadri Inorganics Pvt. Ltd. in his statement recorded on 17-11-2000 had clearly stated that he had never visited the factory premises or office of M/s. Ratan Lila & Co. Ltd., however, goods had been procured through Mr. K.K. Jain of M/s. Ratan Lila & Co. Ltd. That, he did not personally know Mr. C.P. Gupta, Director of M/s. Ratan Lila & Co. Ltd.

(viii) The goods exported were not the "Heat Resistant Rubber Tension Tape" (Strip Rubber Elastic), as per the description mentioned in the Drawback Schedule, whereas the description shown in Shipping Bills and other export documents was "Heat Resistant Rubber Tape", and the Test Report which mentions that "It may be considered as Heat Resistant Rubber Tape" also did not conclusively confirm the description. Hence, the goods exported were not "Heat Resistant Rubber Tension Tape (Strip Rubber Elastic)".

(ix) Thus, Shri K.K. Jain (the middle man), Shri C.P. Gupta, Director of M/s. Ratan Lila & Co. Ltd., Delhi and Shri V.M. Jain, Director of M/s. Dadri Inorganics Pvt. Ltd., Charkhi-Dadri, had jointly and severally involved themselves in a conspiracy to mis-use the benefit of the Drawback Scheme, thereby fraudulently attempting to cause loss to the Government exchequer.

5. Based on the aforesaid facts revealed during the course of investigation, show cause notice came to be issued to the Appellant. The adjudicating authority, that is, Commissioner of Customs, Customs House, Kandla, in his order dated 26-12-2003, upon appreciation of the evidence on record, recorded the following findings:

M/s. Ratan Lila & Company Ltd. had filed declaration with effect from 1-4-2000 under the provisions of Rule 173B of the erstwhile Central Excise Rules, 1944 with the Jurisdictional Assistant Commissioner, wherein while declaring the process of manufacture, they had declared that the materials required for manufacture of heat resistant rubber are required to pass through the "extruder", which meant that the extruder was an essential machinery for manufacture of heat resistant rubber. However, in the affidavit dated 24-12-1996 made by Shri C.P. Gupta, Director of M/s. Ratan Lila & Company Ltd., he had declared the list of machinery installed by them which did not reveal installation of any such extruder in their factory premises. When the extruder required for manufacture of heat resistant rubber tape was not at all installed in the factory premises of M/s. Ratan Lila & Company Ltd., the alleged goods could not have been manufactured at their premises.

The evidence on record revealed that the AR-4 in question had the address of 27, DISDC, Wazirpur, Industrial Area, Delhi, where no factory premises in the name and style of M/s. Ratan Lila & Company Ltd. was situated, but another factory in the name of M/s. Maharana Electronics engaged in the job work of plastic items was situated on the said premises which was owned by it since 1975. Even on the date of removal of the goods in question for export, no such factory in the name and style of M/s. Ratan Lila & Company Ltd. existed at the above-referred address.

As per the endorsement made on the reverse of the shipping bills, the goods were subject to examination at the port of export, which meant that the goods stuffed for export were not examined by the proper officers of the Central Excise Department. It was, therefore, evident that the proper officers of the Central Excise Department had not visited the factory premises, but had signed the contents of the said AR-4 and had no knowledge as regards the contents of the cargo, viz., as to who had manufactured the same and from which premises the same had been stuffed. Since the goods were subject to examination at the port of export, therefore, as per the settled practice, in such cases, the officers did not have to visit the factory premises or to examine the stuffing, but were required to sign the contents of the AR-4 as declared by the exporter in the office itself after the removal of the goods. The signing of AR4s in such a manner was towards compliance of liberalization given to the exporters, whereas the Appellant had tried to use such liberalization in its favour as certification.

Shri C.P. Gupta, vide his statement dated 10-8-2000 had clearly confessed the fact that they had never supplied the said goods but only raised the invoices at the cost of half percent commission of the total transaction value as he was in need of money for his cardiac surgery. Thus, even though they had furnished the copy of BRC, it had no effect over the fact that the goods were neither manufactured nor supplied from the premises situated at 27, DSIDC, Wazirpur, Industrial Area, Delhi.

The record of the case revealed that as per the Chemical Examiners test report, the goods in question were "Heat Resistant Rubber Tape" whereas, the goods were declared as "Heat Resistant Rubber Elastic Tape" to the Department through respective invoices and Shipping Bills. As per the Duty Drawback Schedule, the goods should be Head Resistant Rubber Tension Tape for admissibility of duty drawback. In other words, for entitlement of duty drawback, the goods should be Tension Tape. But, neither the documents submitted at the time of export nor the Chemical Examiners test report confirmed the description Heat Resistant Rubber Tension Tape (Strip Rubber Elastic) as described in the Schedule to the Duty Drawback. This means, the goods which were removed for export by the Appellant had no characteristics of "tension" and/or "elastic", but they were merely "Heat Resistant Rubber Tape". The "tension/elastic rubber tape" and simple "rubber tape" both have distinct use and characteristics. Thus, though the goods in question had no tension/elastic characteristics, the Appellant suppressed the material facts from the department and with an intent to mislead the department used the word "elastic" in the description of the goods declared to the department so as to enable them to claim and get the duty drawback.

The record reveals that as per the Bank Realization Certificates provided by the Appellant, the goods were "Head Resistant Rubber Tapes" whereas the entry of the duty drawback schedule refers to the goods as "Heat Resistant Rubber Tension Tape (Strip Rubber Elastic)". This means, the goods which had been exported in respect of which the Appellant had availed the duty drawback were different than that described in the relevant entry of the Duty Drawback Schedule. The Appellant had suppressed the material facts from the department that though the goods were not in conformity with the description given in the relevant in the Duty Drawback Schedule, they exported under the duty drawback and got Rs. 64,80,000/- towards duty drawback claim from the department.

6. The Tribunal, in the impugned order, has concurred with the findings recorded as well as the conclusions arrived at by the adjudicating authority, and has noticed that in the present case, the Appellant-exporter was clearly aware that the description in the Drawback Schedule was "Heat Resistant Rubber Tension Tape" (Strip Elastic Rubber). The Tribunal was of the view that once the goods did not answer the description in the Drawback Schedule, the claim for drawback would fail.

7. As regards the supporting manufacturer, on behalf of the Appellant, reliance was placed upon an affidavit dated 10-7-2002 of Shri C.P. Gupta, wherein he had stated that he had manufactured the goods and supplied to them to the Appellant, whereas the revenue had relied upon a letter of the Deputy Commissioner dated 27-9-2000. The Tribunal noted that in the letter dated 27-9-2000 cited in the show cause notice, the Assistant Commissioner had intimated that the unit was not in existence at the address and had shifted to another premises. He also had sent the amended registration certificate, which indicated that M/s. Ratan Lila & Company Ltd. had shifted the premises again in 2000. Thus, it had functioned from three premises, firstly up to 1999, secondly in September 2000 and thirdly, thereafter. M/s. Ratan Lila & Company Ltd. had filed a declaration under Rule 173B of the Central Excise Rules, 1944, wherein they had declared that they manufacture Heat Resistant Elastic Tape. They had also listed raw materials against the manufacturing process and mentioned "paned" through extruders. However, according to the records available with the Department, M/s. Ratan Lila & Company Ltd. had furnished the details of machinery installed on 24-12-1996 and the list contained bottle sealing machine, bottle filling machine, mixer (stirrer), bottle drying machine and one Avery weighing scale but no extruder. In the show cause notice dated 1-4-2000, it had been alleged that M/s. Ratan Lila & Company Ltd. could not have manufactured the product without extruder. The Tribunal also noted that Shri C.P. Gupta, Director, in his statement dated 20-9-2000, had explained that they need only scissors for the manufacturing process while explaining the process; that Shri K.K. Jain had not been traced and no statement had been recorded till date. According to the Tribunal it was quite clear that M/s. Ratan Lila & Company Ltd. did not have the facility to manufacture the product. The Tribunal also took note of the fact that Shri V.M. Jain had stated that he had never seen the factory and that he was not aware of that the goods had been sent from Delhi and found it strange that the exporter who had exported the goods under 22 consignments had not even bothered to get the facility available verified to ensure the quality of the product manufactured by them.

8. In the light of the aforesaid findings recorded by it, the Tribunal was of the view that whatever was manufactured or purchased and supplied by M/s. Ratan Lila & Company Ltd. for export was a simple product which did not require any machinery and any technology as such, and even during the period of supply, M/s. Ratan Lila & Company Ltd. had shifted the premises just a few months back. Going by the statements of the persons involved and records, the preponderance of probability was that the said items were not manufactured but purchased and supplied. The Tribunal found that the description of the goods given in the shipping bills tallied with the goods actually exported and it was not the case of the department that there was mis-declaration of description. According to the Tribunal in fact, it was a mistake on the part of the department to have allowed the drawback in the case of earlier shipping bills since the description given in the shipping bills was "heat resistant rubber tape" whereas, the drawback schedule allowed the drawback for "heat resistant rubber tension tape". However, investigations by the department in respect of four shipping bills revealed that the supporting manufacture did not have factory and goods were purchased from open market and therefore, the drawback relating to the central excise part had been claimed wrongly. Thus, there was a clear admission by the concerned parties and a clear finding by the Commissioner that it was a combined organized effort to claim drawback by falsely declaring a supporting manufacturer but purchasing goods from open market and because the department took up verification instead of disallowing drawback only on the ground that the description did not tally, the facts had come out. The Tribunal was, accordingly, of the view that the order for recovery of Rs. 64,80,000/- being drawback wrongly disbursed under Rule 16 of the Drawback Rules, was required to be upheld since it was clearly established that the drawback was not admissible.

9. As regards the contention that the extended period of limitation could not have been invoked, the Tribunal was of the view that the drawback rules are self-contained and framed under Section 75 of the Customs Act and that, no limitation in terms of time limit has been laid down.

10. Examining the contentions raised on behalf of the Appellant in the light of the aforesaid findings of fact recorded by the adjudicating authority as well as the Tribunal, it is an admitted position that the descriptions given in the shipping bills tallied with the goods actually exported. However, as per the Drawback Schedule, the goods entitled to drawback were "Heat Resistant Rubber Tension Tape" (Strip Elastic Rubber) and not "Heat Resistant Rubber Tape" which were the goods exported by the Appellant. Thus, despite the fact that the goods exported by the Appellant were not eligible for drawback, the Appellant had filed a false drawback claim in respect of the said goods. According to the learned advocate for the Appellant, since there is no customs duty involved in the present case, there is no question of having made a false claim for drawback. However, from the facts emerging on record, it is apparent that the Appellant has claimed drawback also on the excise duty component of the goods exported. From the facts noted hereinabove, it is apparent that there was no supporting manufacturer and that the Appellant had purchased the goods from the market, in the circumstances, the drawback claim in relation to the excise duty component of the exported goods was certainly false.

11. Another contention advanced on behalf of the Appellant is that in the light of the provisions of Section 28 of the Customs Act, the extended period of limitation could not have been invoked. However, the said contention does not merit acceptance, inasmuch as a perusal of the Customs, Central Excise Duties & Service Tax Drawback Rules, 1995, ("the Drawback Rules") which have been framed in exercise of the powers conferred under Section 75 of the Act, it is apparent that the provisions regarding drawback are self-contained provisions. The Drawback Rules nowhere provide for any limitation for recovering any amount of drawback erroneously paid. In the circumstances, the contention that the extended period of limitation could not have been invoked is misconceived. Even otherwise, in light of the fact that the Appellant had claimed drawback on the excise duty component without there being any supporting manufacture, the claim would squarely fall within the ambit of willful misstatement or suppression of fact as envisaged under the proviso to Section 28 of the Act. Hence, even if the provisions of Section 28 were applicable, the extended period of limitation could have been validly invoked.

12. From the findings of fact recorded by the adjudicating authority as well as the Tribunal upon appreciation of the evidence on record, it is apparent that the Appellant had purchased the goods in question from the open market and had obtained false documents like AR-4 and invoices from M/s. Ratan Lila & Company Ltd., by claiming that the goods were manufactured in the factory of M/s. Ratan Lila & Company Ltd., whereas the exported goods had actually been purchased from the open market. Thus, the Appellant had wrongly claimed drawback of central excise component thereof which was to the extent of Rs. 17 out of Rs. 60 per Kg drawback allowed. Thus, it is apparent that the Appellant had availed of a huge amount of drawback by falsely claiming drawback on the central excise component of the goods exported.

13. As regards the contention that the goods exported by the Appellant were equivalent to "Heat Resistant Rubber Tension Tape" as specified in the drawback schedule, as noted hereinabove, the adjudicating authority has recorded a specific finding of fact to the effect that the goods exported by the Appellant and the goods specified in the Drawback Schedule are different products and that the goods exported by the Appellant do not answer the description specified in the Drawback Schedule. As to whether the goods exported by the Appellant are "Heat Resistant Rubber Tension Tape", as specified in the Drawback Schedule or otherwise, is a pure question of fact. On behalf of the Appellant, nothing has been pointed out to indicate that the findings recorded by both the authorities below are in any manner unreasonable or perverse or that the same are contrary to the material on record so as to dislodge the concurrent findings of fact recorded by the Tribunal. In the circumstances, the said contention also does not merit acceptance.

14. As regards the contention that the test report pertaining to samples drawn on 29-10-2000 could not have been relied upon in relation to goods exported prior thereto between 24-1-2000 to 31-3-2000, from the evidence on record as well as the concurrent findings recorded by the authorities below, it is apparent that even at the time of prior export of the goods, the same had been obtained from M/s. Ratan Lila & Company Ltd., which, in the light of the findings of fact recorded hereinabove, was not at any point of time manufacturing the goods in question and as such, it is apparent that the goods exported between the period 24-1-2000 to 31-3-2000 had also been exported under false drawback claim by showing the same to have been manufactured by the supporting manufacture, whereas the goods had actually been purchased from the open market without cover of proper central excise paid invoices.

15. Thus, the questions raised mainly arise out of the concurrent findings of fact recorded by the adjudicating authority as well as the Tribunal. The Appellant has not been in a position to point out that the said findings are in any manner vitiated on the ground of perversity or that the same are contrary to the material on record. The only legal contention raised is that the extended period of limitation could not have been invoked in the light of the provisions of Section 28 of the Act, which, as discussed hereinabove, would not be applicable to the facts of the present case, inasmuch as the drawback sanctioned was liable to be recovered under Rule 16 of the Drawback Rules and as such, the provisions of Section 28 would not be applicable to the facts of the present case. As recorded hereinabove, even if the provisions of Section 28 were to be applied, the Appellant having made a false claim to the extent of the excise duty component of drawback, the provisions of Section 28 of the Act would also be squarely attracted.

16. In the light of the aforesaid discussion, it is not possible to state that there is any legal error in the impugned order of the Tribunal so as to warrant interference. No question of law, as proposed or otherwise, much less, a substantial question of law, can be stated to arise out of the impugned order of the Tribunal. The appeal is, accordingly, dismissed.