2012 (6) TMI 373 - HC - Customs

Refund claim of duty drawback - repayment of refund directed on ground that claim of same was beyond the statutory period and therefore was wrongly made - Held that - It is admitted position that the petitioner had filed an application dated 25.07.2003 addressed to Commissioner of Customs, seeking condonation of delay. By implication it can be assumed that the Assistant Commissioner or some other authority had wrongly assumed jurisdiction and condoned the delay. In case the Commissioner or any other authority was not competent to condone the delay and the delay could have been condoned by the Board, the petitioner should have informed and asked to approach the Board. The said application was required to be dealt with by the competent authority. It is accepted that the power to condone the delay beyond three months is with the Board. Hence it will be appropriate to allow petitioner to file application for condonation of delay to Board.

Summary

Issues:
1. Impugned order directing refund of duty drawback.
2. Condonation of delay in filing the drawback claim.
3. Authority to condone delay and jurisdiction.
4. Application for condonation of delay under Rule 7A.

Analysis:
1. The judgment pertains to a case where the petitioner, M/s. ILPEA Paramount Ltd., challenged an order passed by the Government of India directing a refund of Rs. 12,76,496 under Section 129 DD of the Customs Act, 1962. The impugned order upheld the lower authority's decision for the refund.

2. The petitioner exported magnetic straps in 2002 and subsequently claimed a duty drawback. The claim was initially delayed due to the illness and subsequent demise of the person handling the matter. The Assistant Commissioner eventually cleared the drawback claim in 2004 after condoning the delay, and the petitioner received the amount.

3. The authorities relied on Rule 5 of the Re-Export of the imported goods (Drawback of Customs Duties) Rule, 1995, which required the drawback claim to be filed within three months from the order permitting clearance. The Assistant Commissioner had condoned the delay, but it was argued that the Board should have been approached for such condonation beyond the stipulated period.

4. The judgment suggested that the petitioner should file an application under Rule 7A for condonation of delay, which allows relaxation by the Central Government for reasons beyond the exporter's control. The Board was directed to consider the application with all details within a specified timeframe and dispose of it expeditiously.

In conclusion, the writ petition was disposed of with directions for the petitioner to follow the prescribed procedure under Rule 7A for condonation of delay, emphasizing compliance with the statutory provisions and leaving the final decision to the Board.