2010 (12) TMI 455 - HC - Customs

Drawback - Brand rate of drawback - application was rejected since the delay in filing the application for fixation of brand rate was made beyond the period of limitation, i.e. 90 days from the date of expor - the respondent No. 2 has sought to take shelter behind a very hyper technical plea, namely that in the present case he was deciding the application pursuant to directions given by the High Court to dispose of the application under Rule 6 of the Rules and as such could not consider the plea to fix the Brand rate under Rule 7 in accordance with the Drawback Rules - The respondent No. 2 has also raised another specious plea to the effect that the plea is hit by limitation - As recorded by the Additional Commissioner in the case cited hereinabove, there is no substantial difference in the format of the application whether under rule 6 or rule 7 of the Rules. As regards the plea being hit by limitation, the High Court in writ petition had already condoned the delay caused in filing the application. In the circumstances, merely because there was a change in nomenclature, inasmuch as instead of treating the application as one under rule 6, the respondent No. 2 was required to consider the same under rule 7 of the Rules, the same would not attract the bar of limitation as the application is the same - The impugned order of the Joint Commissioner, therefore, cannot be sustained.

Summary

Issues Involved:
1. Quashing and setting aside the decision of the second respondent regarding the drawback claim.
2. Direction to fix the drawback rate by deciding the petitioner's application.
3. Consideration of the application under Rule 7 instead of Rule 6 of the Drawback Rules.
4. Appealability and maintainability of the petition.

Detailed Analysis:

1. Quashing and Setting Aside the Decision of the Second Respondent:

The petitioner sought a writ of Mandamus or Certiorari to quash the decision of the second respondent conveyed via order dated 10-3-2010. The second respondent had rejected the petitioner's application for fixation of the drawback rate under Rule 6 of the Customs and Central Excise Drawback Rules, 1995, citing time limitation and the specificity of the High Court's direction to decide under Rule 6.

2. Direction to Fix the Drawback Rate:

The petitioner requested a direction to the respondents to fix the drawback rate by deciding their application dated 26-11-2004 for the goods exported under Shipping Bill No. 1115741 dated 28-6-2004. The petitioner had previously faced rejection due to a delay in filing the application beyond the 90-day limit specified under Rule 6. The High Court had earlier condoned this delay and directed the authorities to decide the application on merits.

3. Consideration of the Application Under Rule 7 Instead of Rule 6:

The petitioner argued that their application should be considered under Rule 7 instead of Rule 6. The Joint Commissioner, however, adhered strictly to the High Court's direction to dispose of the application under Rule 6, rejecting the plea for consideration under Rule 7. The petitioner cited a precedent (Order-in-Original No. 15/Addl. Commr./2007) where a similar mistake was condoned, and the application was treated under Rule 7. The Court found that there was no substantial difference in the application format under Rule 6 or Rule 7 and that the delay had already been condoned by the High Court. Therefore, the Joint Commissioner's refusal to consider the application under Rule 7 was unjustified.

4. Appealability and Maintainability of the Petition:

The respondent argued that the impugned order was appealable and that the petitioner should have approached the Commissioner (Appeals) within 60 days of the order. Since the appeal period had lapsed, the respondent contended that the petition was not maintainable. However, the Court found that the Joint Commissioner's decision was flawed and that the petitioner's plea should be considered under Rule 7 without the limitation bar.

Conclusion:

The High Court quashed the impugned order dated 10-3-2010 and remanded the matter to the Joint Commissioner, directing them to decide the application afresh under Rule 7 of the Customs and Central Excise Duties Drawback Rules, 1995, without raising the question of limitation. The Court emphasized that the application should be treated as having been filed under Rule 7 instead of Rule 6, aligning with the precedent and the condoned delay. The petition was allowed, and the rule was made absolute with no order as to costs.