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TMI Blog2013 (6) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus of shipping bill electronically only. - supplementary claim filed on 9-4-2010/6-12-2010 after a delay of more than 17 months was clearly time-barred in terms of Rule 15 of Drawback Rules and Commissioner (Appeals) has erred in treating it as filed in time - Decided in favour of Revenue. - F. No. 380/7/DBK/2012-RA - 155/2013-Cus. - Dated:- 14-6-2013 - Shri D.P. Singh, Joint Secretary None, for the Assessee. Shri S. Vasudavan, Advocate, Sunanda Nag, AGM, for the Department. ORDER This revision application is filed by Assistant Commissioner of Customs, Drawback Section, Customs House, Kolkata against the order-in-appeal No. Kol/Cus/CKP/06/2012, dated 27-11-2012 passed by Commissioner of Customs (Appeals) Custom House Kolkata with respect to order-in-original No. Kol/Cus/AC/2783 (DBK) 2011, dated 30-12-2011 passed by Assistant Commissioner of Customs (DBK) Customs House, Kolkata. M/s. Steel Authority of India Ltd. are the respondents in this case. 2. The brief facts of the case are that the respondents exported against EDI shipping bill No. 5318141, dated 12-7-2006, 6342.29 M.T. of prime mild steel concast billets (non-alloy) under claim of drawback unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity as 6-12-2010, the claim is not time-barred in terms of Rule 15 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 as the shipping bill was scrolled out with zero drawback and sent to history, without any formal communication to the appellant is not just and proper. 4.2 In terms of Rule 9 of the of the Customs, Central Excise Duties and Services Tax Drawback Rules, 1995, queries were raised by the drawback appraiser on 19-12-2006 and 23-2-2007 in shipping bill No. 5318141, dated 12-7-2006 respectively to submit ARE-1, buyer s order and BRC but the exporter did not submit the requisite documents nor replied the queries. Hence in terms of P/N 02/2009 the subject shipping bill was scrolled out with zero drawback and sent to history on 25-3-2009. The first letter dated 9-4-2010 from the exporter M/s. Steel Authority of India claiming refund without any enclosures after the shipping bill being scrolled out with zero drawback was received by the Department on 16-4-2010 which was more than three years after seeking details initially. Even this letter of 9-4-2010 of exporter was received more than one year late from the date of scroll out of drawback. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying with the requirements specified in the deficiency memo, the same will be treated as a claim filed under sub-rule (1) for the purpose of Section 75A. 4.3 As far as scrolling out of the shipping bill without any formal communication to the appellant is concerned, it is not at all required in the EDI (Electronic Data Interchange) system to give such information in any other form rather than electronically in the system. In the EDI system the exporter/importer can view the status of his shipping bill/bill of entry in the ice-gate or view it in the service centre provided by the Department and reply the queries accordingly. Since the drawback claim particulars of any claimant is available for suo motu verification of the public through ice-gate and service centre, the question of formally informing the exporter in the EDI system does not arise. It is the duty of the exporter/importer to keep track of their own shipping bills/bills of entry. If the Department keeps on informing each and every exporter about their shipping bills in any other form then the basic principle of EDI system will be defeated. If the argument of Commissioner (Appeals) in this regard is to be accepted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be rejected. 5.2 However, admittedly, in the present case, the respondents were at no point of time furnished with any deficiency memo within ten days as mandated by Rule 13(3)(a). It was only after lapse of more than five months from the date of filing of electronic shipping bill (the drawback claim in the present case), queries were raised by the department regarding the ARE-1 form and the BRC on 19-12-2006 and 23-3-2007 within the EDI system. 5.3 Without prejudice to the aforesaid, the rejection of the drawback claim for the lack of reply to the EDI queries is not tenable due to manner of the communication of the deficiencies/queries. It is submitted that the queries made under the EDI system cannot be termed as a deficiency memo under Rule 13. It is an admitted position that there was no written communication from the department for intimating the deficiencies in the drawback claim filed by the respondent. 5.4 The Commissioner of Customs, Kolkata has issued Public Notice No. 02/2009, dated 9-1-2009 (hereinafter referred to as PN-02/2009 ). Vide PN-02/2009, it was directed that any queries raised by the drawback officers under Rule 9 of the Drawback Rules shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sending to history in the EDI without any formal written communication on the lines of Section 153 of the Customs Act is not proper in the eyes of the law. 5.8 Without prejudice to the foregoing submissions, assuming that the supplementary drawback claim was barred by time as per Rule 15 of the Drawback Rules, it is submitted that your goodself may exercise the general power to relax any non-compliance of any of these rules under Rule 17. The respondents submit that even if the department is of the view that there has been a delay in the filing of supplementary claim, in view of the powers conferred under Rule 17, the same may be condoned. In light of the facts of the case, it has been shown that the respondents were bona fide. The non-compliance of the Rules 9, 13, 15 of the Rules was indeed beyond the control of the respondents as they had not received a speck of written communication from the department to the same effect. It would be against the principles of the natural justice to slap the respondents with charges of non-compliance without first bringing it to their notice via the proper channels. 6. Personal hearing was scheduled in this case on 8-10-2012 and 7-3-2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months, - (iv) where the rate of drawback is determined or revised under Rule 3 or Rule 4, from the date of publication of such rate in the official Gazette; (v) where the rate of drawback is determined or revised upward under Rule 6 or Rule 7, from the date of communicating the said rate to the person concerned; (vi) in all other cases, from the date of payment or settlement of the original drawback claim by the proper officer. Provided further that the aforesaid period of three months may be extended by the Assistant Commissioner of Customs or Deputy Commissioner of Customs for a further period of nine months on being satisfied that the exporter was prevented by sufficient cause from filing his supplementary claim within the aforesaid period of three months. (In Rule 15 in sub-rule (I) second proviso has been substituted vide Notification No. 14/2004-Customs (N.T.), dated 2-2004) (In Rule 15 in sub-rule (I) been substituted vide Notification No. 22/2003-Customs (N.T.), dated 3-3-2003) (2) Save as otherwise provided in this rule, no supplementary claim for drawback shall be entertained. (3) The date of filing of the supplementary claim for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below for the sake of understanding the matter :- Government of India Office of the Commissioner of Customs Custome House, 15/1, Strand Road, Kolkata - 700 001 Public Notice No. 02/2009 Sub : Non-replied to queries be present for sample examination with respect to drawback shipping bills - Reg. This Commissionerate has started a special drive to liquidate the drawback pendencies, from the available record in the drawback department, it is found that about 983 claims (pertaining to All Industry Rate) are pending with exporters for non compliance of the queries raised. It is also found that 350 claims (pertaining to All Industry Rate) are pending with sample queue for examination of the sealed representative sample. List of such shipping bills which are pending in the exporter queue and sample queue with the other details, are enclosed. As per the attached list of shipping bills wherein no replies to the queries raised by the drawback officers have been given by the exporter, wherein the drawback officers are empowered to require submission of information and documents as per Rule 9 of the Customs, Central Excise Duties and Service Tax Drawb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The shipping bill was filed electronically on EDI system so he was required to check the status of shipping bill electronically only. 9.6 The respondent has finally argued that Central Government may condone the delay in terms of Rule 17 of Drawback Rules. In this regard, Government observes that respondent was required to seek such condonation of delay from designated proper authority in Central Government. Respondent has not produced any such condonation of delay approval from competent designated authority and therefore no relief can be granted by revisionary authority who is exercising powers only under Section 129DD of Customs Act, 1962. 9.7 In view of above discussion, Government find force in the pleading of applicant department and holds that this supplementary claim filed on 9-4-2010/6-12-2010 after a delay of more than 17 months was clearly time-barred in terms of Rule 15 of Drawback Rules and Commissioner (Appeals) has erred in treating it as filed in time. 10. In view of above position, Government sets aside the impugned order-in-appeal and restores the impugned order-in-original. 11. The revision application thus succeeds in terms of above. 12. So, orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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