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TMI Blog2011 (12) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... should be condoned. Since delay is of only 22 days and it is almost six years since the application for condonation of delay was made. Accordingly, we issue a writ of certiorari and quash the letter dated 3rd October, 2005 and mandamus is issued to the respondent to make refund. In case the aforesaid amount has been recovered by adjustment, the said adjustment will be treated as null and void. If any refund payment is to be made, the same will be made within a period of four weeks from the date copy of this order is received. Interest @ 12% p.a. will be payable on delay of payment of refund – Decided in favor of assessee. - W.P.(C) 13335/2005 - - - Dated:- 14-12-2011 - Sanjiv Khanna, R.V. Easwar, JJ. Pradeep Jain, Adv. for the Appellant JUDGEMENT 1. There is no appearance on behalf of the respondent, accordingly, we have heard learned counsel for the petitioner. 2. The petitioner is a firm and had imported photographic colour films by paying customs duty of Rs.19,12,281/- vide TR-6 challan dated 24.4.2003 under cover of bill of entry No. 836127 dated 16.4.2003. 3. The petitioner re-exported the said goods within about four months of import, to another ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government had the power to condon the delay in terms of Rule 7A, their application should have been forwarded to the Central Government. The Commissioner of Customs (Appeals) rejected the said ground, inter alia, observing: "The appellant has contended that the adjudicating authority should have forwarded their application for relaxation of the provisions of theRules to the Central government in terms of Rule 7A of the said Rules. It is observed that the adjudicating authority has clearly observed in his adjudication order that there was no request from the appellant for condonation of delay in their refund claim dated 11.3.04. Even if it is accepted that they had filed such a letter, the Rules do not place any obligation on the adjudicating authority to forward their application to the central Government. In fact, the appellant should have realized that their claim for refund was barred by limitation and they should have themselves applied to the Central Government under Rule 7A for relaxation of 22 days delay in filing the refund claim under Section 74 of the Customs Act read with Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. They have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no response or reply to the said application. In these circumstances, the present writ petition was filed on 16.8.2005. 12. On the very first date of hearing, on 23.8.2005 while issuing notice on the writ petition, the Court had passed the following order:- "Issue notice to the respondents to show cause why the writ petition not admitted. Mr. J.P.Sengh accepts notice on behalf of the respondent. He submits that although the Government have received a representation dated 21st December, 2004, no decision on the same has been taken sofar. He states that given six weeks time, the Government should be in a position to examine the prayer made in the representation and pass an appropriate order incase the same has not already been passed. In the circumstances, therefore, this writ petition shall stand adjourned to be posted again on 12th December, 2005. The Government shall disposed of the representation made to it within six weeks. A copy of the order passed in the same shall be placed before the court by the next date of hearing. We further direct that no coercive step for the recovery of the drawback amount shall be initiated against the petitioner. Dasti. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or (iii) are entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if:- (a) the goods are identified to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the goods which were imported; and (b) the goods are entered for export within two years from the date of payment of duty on the importation thereof: Provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit. (2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l bearing examination report recorded by the proper officer of the customs at the time of export. (b) Copy of Bill of Entry or any other prescribed document against which goods were cleared on importation. (c) Import invoice. (d) Evidence of payment of duty paid at the time of importation of the goods. (e) Permission from Reserve Bank of India for re-export of goods, wherever necessary. (f) Export invoice and packing list. (g) Copy of Bill of lading or Airway bill. (h) Any other documents as may be specified in the deficiency memo. (3) The date of filing of the claim for the purpose of section 75A shall be the date of affixing the Dated Receipt Stamp on the claims which are complete in all respects, and for which an acknowledgement shall be issued in such form as may be prescribed by the Commissioner of Customs. (4) (a) Any claim which is incomplete in any material particulars or is without the documents specified in sub-rule (2) shall not be accepted for the purpose of section 75A and such claim shall be returned to the claimant with the deficiency memo in the form prescribed by the Commissioner of Customs within fifteen days of submission and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund was made. Later on a show cause notice was issued and an order of repayment of Rs.18,74,035/- was issued. The petitioner unsuccessfully challenged the said order in appeal. The petitioner, in the meanwhile, filed an application under Section 7A dated 21st December, 2004, which remained pending for a long time and an unreasoned communication was made on 3rd October, 2005 that the Central Government has not considered the said application for condonation of delay under Rule 7A. This is a highly unsatisfactory manner to deal with the application. The order dated 3rd October, 2005 does not state or give any reason and is cryptic. Reasons are heart and soul of an order. When power has been conferred under Rule 7A, the said power has to be exercised appropriately and fairly, after considering the grounds and reasons given by the applicant. The rejection of the application for condonation of delay of 22 days in the present case, therefore, cannot be sustained. 20. One option available to us is to remand the matter and ask the Central Government to pass a fresh order, but in the present case the delay is of only 22 days and it is almost six years since the application for condon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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