2007 (1) TMI 248 - HC - Central Excise

Drawback - Limitation - Application for advance licence filed but rejected twice. Application claiming brand rate of drawback filed but rejected on ground of delay. Non-filing of application for condonation of delay not fatal as representation submitted was sufficient. Parallel remedy could not be availed in view of para 70 of EXIM Policy. Non filing of application for condonation of delay beyond the control of respondent. Impugned order of single judge directing consideration of drawback applicable on merits, sustainable.

Summary

Issues:
1. Consideration of application for duty drawback under Brand Rate Scheme rejected due to delay.
2. Legality and correctness of the order of the learned Single Judge questioned in appeal.

Issue 1:
The respondent's application for duty drawback under the Brand Rate Scheme was rejected twice due to delay. Subsequently, the respondent sought reconsideration by explaining the reasons for the delay. The learned Single Judge allowed the writ petition, setting aside the rejection and directing a reconsideration of the application on merits. The appellant challenged this decision, arguing that the Single Judge erred in directing consideration of the condonation of delay on merits. The appellant cited a Supreme Court decision stating that judicial review under Articles 226 and 227 is a decision-making process, not a determination on merits. Additionally, it was contended that the respondent was aware of available remedies under the law, and the condonation of delay was not covered under Rule 15 of the Customs and Central Excise Duties Drawback Rules, 1971.

Issue 2:
The appellant challenged the legality and correctness of the Single Judge's order. The respondent justified the order by stating that discretionary power was exercised in line with para 70 of the Export and Import Policy of India. The High Court examined the legal contentions and found that the non-filing of an application for condonation of delay was not fatal as the representation submitted was sufficient. The Court noted that under para 70 of the Policy, a parallel remedy could not have been pursued by seeking duty drawback exemption separately. The Single Judge's decision was upheld as being in accordance with relevant legal precedents, including a Supreme Court decision from 1980. The Court agreed with the Single Judge that the delay was beyond the control of the respondent and that Rule 15 of the Rules was considered in reaching this conclusion.

In conclusion, the High Court dismissed the appeal, affirming the Single Judge's decision to set aside the rejection of the duty drawback application and directing a reconsideration on merits. The Court found no grounds to interfere, supporting the Single Judge's reasoning and legal interpretation in the matter.