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TMI Blog2014 (1) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can be condoned even at the time of consideration of an application for refund/drawback - When there is proof of export, the time stipulation of six months to carry out export should not be construed within pedantic rigidity. In this case, the delay is only of about two months. The Commissioner should have considered the reasons for the delay in a liberal manner. It would perhaps be pertinent to note that an exporter does not ordinarily stand to gain by delaying export. Compelling reasons such as delay in finalization and confirmation of export orders, cancellation of export orders and the time consumed in securing export orders/fresh export orders delay exports - What is important is, the reason for delay. Even after export extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N.T.), dated September 6, 2004, the Central Government granted rebate of whole of the duty paid on excisable goods in the First Schedule to the Central Excise Tariff Act, 1985 exported to countries other than Nepal and Bhutan, subject to certain conditions as contained in the said notification. 5. One of the conditions stipulated in the said notification was that the excisable goods should be exported within six months from the date on which they were cleared for export from the factory of the manufacturer or warehouse or within such extended period as the Commissioner of Central Excise might, in any particular case, allow. 6. The petitioner company cleared two consignments covered by Form ARE-1 No. 260/2005-06, dated 23rd December, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the time gap between the date of clearance of the goods from the factory of the petitioner-company and the date of actual export exceeded six months. Thus, clause 2(b) of Notification 19/2004-C.E. (N.T.) had not been fulfilled. The company filed its reply to the show cause notice by its letter dated 6th September, 2007. 13. Thereafter personal hearing was given to the petitioner-company. Written notes of submissions were also filed in course of personal hearing. The petitioner-company submitted that Notification No. 19/2004-C.E. (N.T.) being a beneficial notification which provided for the incentive of drawback with a view to encourage exports, it should liberally be construed. 14. By an order dated 10th September, 2009 the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad duly been exported and had earned foreign exchange for the country. Mr. Bagaria submitted the fundamental requirement of export of the consignment in question having been fulfilled, the procedural infraction should have been condoned. 19. On behalf of the respondents however, Mr. Bharadwaj argued that the Notification being an exemption notification, it should strictly be construed. The benefit could not be granted unless the petitioners complied with all the conditions stipulated in the said notice including the condition of export within the stipulated time, that is, within six months from the date of clearance of the goods from the factory premises of the petitioners. 20. When there is a time stipulation for export to avail of a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in no way responsible. 24. In Commissioner of Central Excise and Customs, BBSR-1 v. Birla Tyres, reported in 2005 (179) E.L.T. 417 (Tri.-Kolkata) the Eastern Bench of CESTAT held that where out of a total quantity of 1334 sets, 1211 sets were exported within the extended period and the balance 123 sets were exported after the extended period and there was no loss of revenue, grant of rebate could not be denied. The finding was certainly binding on the respondent authorities. 25. In Cosmonaut Chemicals v. Union of India reported in 2009 (233) E.L.T. 46 (Guj.) a Division Bench of Gujarat High Court held, and rightly, that a claim for rebate filed beyond the stipulated time limit, due to circumstances beyond the control of claimant could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. Even after export extension of time may be granted on the same considerations on which a prior application for extension of time to carry out export is allowed. If there is sufficient cause for the delay, the delay will have to be condoned, and the time for export will have to be extended. In my view, in considering the causes of delay, the Commissioner would have to take a liberal approach keeping in mind the object of the duty exemption, which is encouragement of exports. 32. Of course, in a case of inordinate unexplained delay or a case where the delay has caused loss of revenue to the Government or in a case where there is reason to believe that export has been delayed deliberately with ulterior intention, for example, for higher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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