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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 ..... /2010 dated 10-3-2010 (Annexure "P") with consequential benefits of drawback in the petitioners' favour for the goods exported under Shipping Bill No. 1115741 dated 28-6-2004. (B) That Your Lordships may be pleased to issue a writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the respondents, their servants and agents to fix drawback rate by deciding the petitioners' application dated 26-11-2004 for fixation of drawback rate for the goods exported under Shipping Bill No. 1115741 dated 28-6-2004 with consequential benefits of grant of drawback with interest at appropriate rates that may be fixed by this Hon'ble Court. (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their servants and agents to decide drawback rate for the goods exported by the petitioner company vide Shipping Bill No. 1115741 dated 28-6-2004 and to grant appropriate drawback amount on the conditions that may be deemed fit by this Hon'ble Court." 3. Facts of the case concisely stated, are as under : The petitioner is engaged in the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imum period of 90 days for making an application from the date of export. In view of this oral view expressed by the authorities, the petitioner Company wrote a letter dated 29-11-2004 to the respondents. Thereafter, the 4th respondent sent a letter bearing F. No. ICD/CCE-1/10/04-05 dated 15-12-2004 informing the petitioner Company that their application was rejected since the delay in filing the application for fixation of brand rate was made beyond the period of limitation, i.e. 90 days from the date of export. As the petitioner's claim for drawback was rejected, the petitioner filed Special Civil Application No. 5401 of 2005 before this Court. The said petition was disposed of by a Division Bench of this Court as the petitioner sought permission to withdraw the petition in the light of the averments made in the affidavit-in-reply filed on behalf of the respondents for making an appropriate application/representation before the Central Government seeking relaxation of the period of limitation. Accordingly, the petitioner filed a detailed application/representation before the 1st respondent for relaxation in time limit for filing the drawback claim. Ultimately, the Technical Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought for now. The O.I.O. ibid relied upon the application is not applicable as precedent to the present case as the facts in the present case are different from those in the relief upon O.I.O. The present application is entertained as per the directions of the Hon'ble High Court of Gujarat. The directions are very specific. They do not give room for deviation. As the direction is to dispose of the application under Rule 6 of the Drawback Rules, I do not consider the plea by the applicant to fix the Brand rate under Rule 7 is in accordance with the Drawback Rules. The plea is also hit by time limitation. The application is liable for rejection". 5. After making the aforesaid observation in paragraph 7, the application dated 26-11-2004 filed by the petitioner Company seeking fixation of Brand rate under Rule 6 of the Drawback Rules for Rotary Printing Machine exported under Shipping Bill No. 1115741 dated 28-6-2004 was rejected in exercise of powers conferred upon the said office under Rule 6 of the Drawback Rules. 6. It has been specifically mentioned in paragraph 7 of the order that the application is entertained as per direction of this Court, and it has been specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er before the said officer, the order came to be passed observing that the directions in the order are very specific and they do not give room for deviation, as the direction is to dispose of the application under Rule 6 of the Drawback Rules. 12. In a similar case where the petitioner had made an application under rule 6 instead of rule 7 of the Rules, which came to be decided vide Order-in-Original No. 15/Addl. Commr./2007 dated 29-10-2007, a copy whereof is annexed as Annexure 'Q' to the petition, the Additional Commissioner had held as follows : "(vii) Further, there is no material change in the format and the declarations in respect of the application filed under the provisions of Rule 6 or Rule 7 of the Drawback Rules, 1995 except mentioning the Rule against column No. 10 in the application. The details of consumption and also the details of duty payment in respect of duty paid inputs remain the same in both the situation. I therefore condone the bona fide mistake of the assessee and consider the application under Rule 7 instead of Rule 6 of the Customs & Central Excise Duties Drawback Rules, 1995. xxx xxx xxx" 13. The aforesaid order had also been cited bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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