2009 (12) TMI 341 - AT - Customs

Drawback brand rate- The appellants applied for fixation of drawback brand rate in respect of export made by them in respect of six consignments. In all the cases, the application for fixation of drawback was filed beyond the period of 60 days. The Commissioner in his impugned order rejected the application for condonation of delay and consequently the application for fixation of drawback rate also gets rejected. Held that- the appellant submits that in future, such delay would not happen thus lenient view should take. Therefore, direct the Commissioner to consider the application for fixation of drawback by condoning the delay. In the result, order refusing to condone the delay is set aside. Appeal is allowed by way of remand.

Summary

Issues:
Application for fixation of drawback brand rate filed beyond 60 days - Refusal of condonation of delay by Commissioner - Financial crisis of the appellant - Interpretation of requirements for brand rate fixation - Previous delays in applications - Justification of Commissioner's decision - Appellate Tribunal's decision on early hearing application.

Analysis:
The case involved the appellants applying for the fixation of drawback brand rate for exports made in six consignments, with all applications filed beyond the 60-day period. The Commissioner rejected the application for condonation of delay, leading to the rejection of the drawback rate fixation application. The appellant argued financial crisis, with over Rs. 14.6 crores involved, citing delay due to the late receipt of the EP copy of the shipping bill from the Customs House Agent (CHA), who blamed the delay on the Kandla Customs House. The appellant relied on a Customs Circular for leniency in delay condonation, claiming the delay was within permissible limits and the Commissioner's jurisdiction.

The Respondent, however, contended that the reason for delay was not valid as only a photocopy of the shipping bill was required for brand rate fixation, not the EP copy. The Commissioner noted previous delayed applications by the appellant, all of which were condoned, and rejected the argument that the CHA did not provide documents on time. The Appellate Tribunal, after considering arguments and the Commissioner's observations, upheld the refusal of delay condonation. The appellant acknowledged the misunderstanding regarding the EP copy requirement and assured no future delays. Considering the export slowdown and financial difficulties, the Tribunal decided to allow the early hearing application and directed the Commissioner to reconsider the drawback application by condoning the delay, ultimately setting aside the refusal to condone the delay.

In conclusion, the appeal was allowed for remand, and the early hearing application was disposed of by the Appellate Tribunal. The decision highlighted the importance of strict adherence to application timelines, the interpretation of document requirements, past practices of delay condonation, financial hardships of exporters, and the Tribunal's discretion in allowing early hearings and setting aside refusals based on justifications presented during the proceedings.