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TMI Blog2010 (12) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... 793/09 [2010 (253) E.L.T. 93 (Tribunal)], proposing the following questions :- "Whether Hon. Tribunal was correct in directing to condone the delay in filing the application for fixation of brand rate of drawback under Rule 7 of the said rules, in absence of "sufficient cause" and whether the Tribunal has the power to alter the time-limit specified in Rule 7 of the said rule?" 2. The respondent Company is engaged in the manufacture and export of Tubular Towers for Wind Operated Electricity Generators. The respondent had filed six applications for fixation of brand rate of duty drawback under Rule 7(1) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 [the Rules] on account of duty suffered on inputs used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation of brand rate of duty drawback by the respondent during the last two years were invariably delayed with the same set of reasons which cannot be termed as "sufficient cause". The Commissioner also was of the view that if delay was required to be condoned irrespective of sufficient cause, it would mean altering the time-limit of 60 days specified in Rule 7(1) of the Rules to 90 days and therefore, cannot be accepted. Learned Standing Counsel accordingly submitted that the appeal requires consideration and that the question as proposed or as may be deemed fit by the Court may be formulated. 5. Mr. Navin K. Pahwa, learned advocate appearing on caveat on behalf of the respondent Company has invited attention to the reasonings adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 issued by the Government of India, submitted that the respondent was under the bona fide impression that EP copy was required to be submitted along with the application for fixation of brand rate of duty drawback. Attention of this Court is also drawn by the learned advocate for the respondent to a circular dated 9th December 2003 issued by the Central Board of Excise and Customs, Government of India wherein it is stated that after taking into consideration the difficulties faced by exporters in filing applications for fixation of brand rate of duty drawback as there is delay in obtaining EP copies of the shipping bills, the Government had clarified that a liberal approach should be adopted in condoning the delay over and above the usu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent view can be taken at this juncture. Circular dated 9th December 2003 lays down thus : "3. In the interest of export promotion and as a measure facilitation to the exporters, the Ministry had never taken such a restrictive approach in condoning the delay of 30 days beyond the normal period of 60 days and the manufacturer/exporter were permitted to file a simple request for such extension within the said time-limit of 60+30=90 days. Any approach for not condoning the delay of 30 days beyond a period of 60 days may run contrary to the approach adopted earlier by the Ministry, and may result in tremendous resentment by the trade and industry and ultimately affect the exports. It is, therefore, suggested that a liberal approach be ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned authorities to adopt a liberal approach in condoning the delay in filing application for fixation of brand rate of drawback. The circular would be binding on all the officers of the Government, and therefore, the Commissioner was not justified in brushing aside the same stating that the Ministry has not stated that delay should be condoned in all the cases irrespective of whether the case is covered by the criteria/yardstick given in the relevant legal provisions. While holding so, the Commissioner has failed to consider the fact that the said circular had been issued in the light of the fact that a copy of the EP shipping bill was required to be filed along with the application for fixation of brand rate of drawback. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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