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TMI Blog2015 (8) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 months therefore was empowered to condone delay – It was held in COMMISSIONER OF CUSTOMS, MUMBAI vs. TERAI OVERSEAS LTD [2002 (10) TMI 109 - HIGH COURT AT CALCUTTA] that while considering application for drawback, documents filed in support of claim should be considered liberally and drawback cannot be denied on mere technicalities or by adopting narrow and pedantic approach, since duty drawback is incentive scheme – In view of said observation impugned order set aside – Matter remitted to first respondent to consider applications of petitioner – Decided in favour of Appellant. - Writ Petition No. 40357/2014 , Writ Petition Nos. 49414-49418/2014 & 49419-49422/2014 (T-TAR) - - - Dated:- 8-4-2015 - Aravind Kumar, J. For the Petitioner : Sri Shivadass G, Adv. For the Respondents : Sri K N Mohan, Standing Counsel ORDER Petitioner is seeking for quashing of order bearing F.No.609/252/2008-DBK dated 13.05.2014 (Annexure-A) whereunder applications filed by petitioner for condoning delay in filing the application seeking for duty drawback exemption as is permissible under Section 74 of the Customs Act, 1962 has been rejected on the ground that applications filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y drawback claim application before fifth respondent belatedly which was not accepted by fifth respondent on the ground that claims were time barred. 4. Hence, petitioner approached first respondent and filed representation dated 04.01.2008 (Annexure-C) with a prayer for condonation of delay in filing the drawback claims in respect of six shipping bills and likewise in respect of another set of 4 shipping bills filed for export of goods with the same port. The application/representation dated 04.10.2008 (Annexure-F) was also submitted by the petitioner seeking for condonation of delay. After extending personal hearing to petitioner, first respondent by communication dated 13.05.2014 (Annexure-A) intimated the petitioner rejection of claim or non condonation of delay by the authorities enclosing therewith orders/reasons assigned for rejection of claims/prayer for condonation of delay and as such, petitioner is before this Court. 5. It is the contention of learned Advocate appearing for petitioner that when authorities have categorically stated that exportation of goods have taken place and same having been confirmed by the jurisdictional Commissioner of Customs, first responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by the petitioner, after making such value additions. Application under Rule 5 of the Rules, 1995 came to be submitted by petitioner before fifth respondent which was stated to have not been accepted on account of same being belated. Rule 5 of the Rules, 1995 mandates that claim for drawback under the said Rules should be filed within three months from the date on which an order permitting clearance and loading of goods for exportation under Section 51 is made by the proper Officer of Customs and proviso thereto enables the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the case may be, to permit filing of such application claiming drawback beyond the period of three months and within further period of 3 months subject to the exporter satisfying the said Officer/s by giving sufficient cause for such delay. In other words, the exporter would be entitled to file a claim for duty draw back within an outer limit of six months by explaining the delay. In the event of delay being beyond six months, power to relax the prescribed period is available to the Central Government under Rule 7A of the Rules, 1995 and on such cause being shown, Central Government if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay, it has to be dealt by Ministry. 10. The reason assigned by the first respondent to reject the prayer for condonation of delay of petitioner's claim as can be seen from the impugned order is that Custom House Agent of the petitioner had informed the first respondent of having forwarded requisite documents after having effected shipment to the petitioner and as such, cause shown by the petitioner was disbelieved for not being entertained or delay being condoned. In view of the fact that first respondent having amended Rule 5 of the Rules, 1995 and extended the period from 6 months to 9 months and the power available under Rule 7A to the Central Government to relax in relation to export of any goods if the Central Government is satisfied that reasons assigned by the exporters or his authorized agent for belatedly filing an application for duty drawback, it is empowered to relax the time limit or in other words, it is empowered to condone the delay. 11. The Division Bench of this Court under similar circumstances in the case of UNION OF INDIA vs WIPRO LIMITED reported in (2010) 255 ELT 226 ( Kar .) has held that direction issued by the learned Single Judge of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately found that benefit of the Drawback Claim has been given to a party unauthorisedly , there are provisions under Rule 16(a) of the said Rules for its recovery where the export proceeds were not realized. Therefore, at the time of granting the Drawback Claim, the authorities have to proceed on a reasonable basis and cannot accept a narrow and pedantic approach. Apart from that, this Court also finds that the Tribunal held that the rebate of duty can be claimed on any imported or excisable materials used in the manufacture of certain goods which are manufactured in India and exported. Therefore, the main purpose of the said Rules is to boost export and earn foreign exchange. Admittedly, in the instant case, the export had taken place and the foreign exchange involved in the process had also been earned. 23. As the Court has to interpret the said rule, the language of Rule 13(2) assumes considerable importance. The said sub-clause 2 used the expression 'should' instead of the expression 'must' or 'shall', the express shall has been used in Rule 13(3) and Rule 13(3) provides that if the claim for drawback is incomplete in any material particulars or ..... 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