2018 (1) TMI 747 - HC - Customs

Duty drawback - Rule 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 - rejection on the ground that it has not been filed within the prescribed time limit or allowable period of further period of three months - Held that - Rule 7A of the said Rules deals with power to relax, in exercise of the powers under the said rules, if the Central Government is satisfied that in relation to the export of any goods, the exporter or his authorised agent has, for reasons beyond his control, failed to comply with any of the conditions and has thus been entitled to drawback, it may be considered - the first respondent would be well within his Jurisdiction to examine the plea raised by the petitioner as to whether the reason for non compliance of the procedure under Rule 5(1) was for reasons beyond the control of the petitioner. However, this exercise has not been done by the respondent. The authorities while examining the application for relaxation or for condonation of delay has to be more pragmatic or in other words if it is found that claim is not a false claim or in other words, it is genuine claim, they would be liberal in condoning delay. However, if authorities were to find that claim itself is doubtful, they would be within their domain to reject the application while considering the claim for relaxation of time or for condonation of delay as is permissible under Rule 7A if the Rules, 1995. The matter is remanded to the first respondent for fresh consideration to decide as to whether the petitioner would be entitled for relaxation of the rigor of Rule 5(1) of the Rules and consider as to whether the petitioner s case would fall under Rule 7A of the Rules - petition allowed by way of remand.

Summary

Issues:
Challenge to rejection of drawback claim due to delay in filing under Rule 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Invocation of Rule 7A for relaxation of the time limit. Failure of the first respondent to consider alternate plea for relaxation. Discrepancy in the exercise of discretion under Rule 7A by the first respondent.

Analysis:

1. Challenge to Rejection of Drawback Claim: The petitioner challenged the rejection of their drawback claim due to a delay in filing under Rule 5 of the relevant Rules. The original and appellate authorities rejected the claim as time-barred, which was upheld by the revisional authority. The petitioner contended that the Shipping Bill filed under Section 74 should be deemed as a claim, and the delay in filing the claim should be condonable, especially considering beneficial legislation like Cenvat, Drawback, Rebate, etc.

2. Invocation of Rule 7A for Relaxation: Rule 7A of the Rules empowers the Central Government to relax conditions if the exporter failed to comply due to reasons beyond their control. The petitioner argued that the first respondent should have considered whether the non-compliance with Rule 5(1) was due to reasons beyond their control. The court highlighted a similar case from the High Court of Karnataka where a claim for drawback was rejected due to a filing delay.

3. Failure to Consider Alternate Plea: The petitioner's alternate plea for relaxation under Rule 7A was not considered by the first respondent. The court emphasized that the first respondent should have examined whether the delay was beyond the petitioner's control, as per the provisions of Rule 7A. The failure to consider this aspect necessitated a fresh examination of the case.

4. Discrepancy in Discretion under Rule 7A: The court referred to precedents emphasizing a pragmatic approach in condoning delays if the claim is genuine. Technicalities should not override substantial justice, especially in incentive-oriented schemes like drawback claims. The court cited a case from the High Court of Kolkata where it was held that drawback claims should not be withheld based on mere technicalities.

In conclusion, the court allowed the Writ Petition, setting aside the first respondent's order and remanding the matter for fresh consideration. The court directed the first respondent to evaluate whether the petitioner could be entitled to relaxation under Rule 7A, emphasizing that technicalities should not defeat legitimate drawback claims. The judgment highlighted the importance of a liberal approach in condoning delays for genuine claims, ensuring substantial justice prevails in such matters.