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TMI Blog2010 (12) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... omenclature, inasmuch as instead of treating the application as one under rule 6, the respondent No. 2 was required to consider the same under rule 7 of the Rules, the same would not attract the bar of limitation as the application is the same - The impugned order of the Joint Commissioner, therefore, cannot be sustained. - 13645 of 2010 - - - Dated:- 16-12-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : Shri Paresh M. Dave, for the Petitioner. S/Shri P.S. Champaneri, ASG and Y.N. Ravani, Advocate, for the Respondent. [Order per : H.B. Antani, J. (Oral)]. - Rule. Mr. P.S. Champaneri, learned Assistant Solicitor General and Mr. Y.N. Ravani, learned advocate waive service of rule on behalf of respondents No. 1 and 2 respectively. As the respondents have appeared pursuant to notice dated 14-10-2010 for final disposal, this matter is taken up for final hearing today. 2.The present petition preferred under Article 226 of the Constitution of India is filed by the petitioner-Company which is engaged, in the business of textile machinery and spares, with the following prayers : (A) That your Lordships may be pleased to issue a Writ of Mandamus or a Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en determined by the Government. The petitioner Company manufactured one Rotary Screen Printing Machine and exported the same with certain spares and accessories, vide Shipping Bill No. 1101951 dated 15-3-2004 from Inland Container Depot, Sabarmati, Ahmedabad. The petitioner Company was also required to make an application in the prescribed form for fixation of rate of drawback for the above goods exported under the aforesaid shipping bill. The petitioner Company, vide their letter dated 1-9-2004 requested the respondents to return the original duty paying documents such as bills of entry and invoices etc. which were submitted to the respondents along with the claim for the first machine exported earlier. Ultimately, the 2nd respondent determined the rate of drawback for the above goods and communicated it to the petitioner, vide letter bearing F.No. ICD/CCE-1/03/04-05 dated 11-10-2004. There being no specific rate of drawback fixed for these goods, the petitioner Company was required to get fixed specific rate for the goods exported under the above referred shipping bill also. The petitioner Company completed the formalities and submitted the same to the respondents. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Commissioner, Central Excise (BRU), Ahmedabad who ultimately passed an order on 10-3-2010. It is thus observed in paragraph 7 of the said order : 7. The applicant pleaded for fixation of the Drawback under Rule 7 of the Drawback Rules. The Hon ble High Court specifically ordered for determination of the Drawback under Rule 6 on merits in accordance with law. The applicant pleaded for fixation under Rule 7 on 4-7-2008. The plea on consideration as a fresh application is hit by time limitation as the goods were exported on 28-6-2004. The applicant also pleaded for determination of Brand rate on the analogy of the O.I.O. No. 15/Addl. Commr./2007 dated 29-10-2007. On perusal of the order, it is noticed that the mistake committed in quoting the correct Rule in the application was condoned by the adjudicating authority and fixed the Brand rate on the ground of identicality of the manner of determination of Brand rate both under Rule 6 and 7 of the Drawback Rules. The adjudicating authority also observed that Brand rate under Rule 6 could not be fixed for the product as All Industry Rate [A.I.R] was fixed to the product exported. The product exported was Rotary Screen Printing Mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the impugned order passed by the Joint Commissioner, Central Excise [BRU], Ahmedabad is in original and the said order is an appealable order as an appeal would lie before the Commissioner (Appeals) within 60 days from the date of the order and therefore the present petition filed directly before the High Court challenging the said order is not maintainable. He further submitted that the appeal is already time barred. He therefore submitted that the petition does not call for any interference and deserves to be dismissed. 10. We have heard learned advocates appearing in this matter at length and in great detail. We have also considered the averments made in the petition as well as the affidavit in reply filed on behalf of the respondent. 11. The impugned order dated 10-3-2010 passed by the Joint Commissioner, Central Excise [BRU], Ahmedabad has been passed as per the directions given by this Court in order dated 25-7-2007 passed in Special Civil Application No. 19367 of 2006 [2008 (221) E.L.T. 328 (Guj.)]. In the said order, this Court had directed the authorities to dispose of the application under Rule 6 of the Drawback Rules whereas the same ought to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as one under rule 7 of the Rules. As regards the plea being hit by limitation, the High Court in writ petition had already condoned the delay caused in filing the application. In the circumstances, merely because there was a change in nomenclature, inasmuch as instead of treating the application as one under rule 6, the respondent No. 2 was required to consider the same under rule 7 of the Rules, the same would not attract the bar of limitation as the application is the same. It is only being treated as having been filed under a different provision. The impugned order of the Joint Commissioner, therefore, cannot be sustained. 14. In the peculiar facts and circumstances of this case narrated hereinabove, this petition is allowed. Hence the following order : 15. The impugned order dated 10-3-2010 passed by the respondent No. 2, Joint Commissioner, Central Excise [BRU], Ahmedabad is quashed and set aside. The matter is remanded to the respondent No. 2 who shall decide the application made by the petitioner for fixation of drawback rate for the goods exported by the petitioner vide Shipping Bill dated 28-6-2004 afresh and grant consequential benefits, by treating the same as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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