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TMI Blog2018 (1) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... g the petitioner's revision application filed challenging the order in appeal dated 16.02.2006 passed by the Commissioner of Customs (Appeals). The petitioner had re-exported one Hydraulic Motor to Germany under Shipping Bill dated 18.03.2004 under Section 74 of the Customs Act, 1962 (The Act). 3. The goods were originally imported by Bill of Entry dated 11.02.2003 and the reason for re-export is on the ground that the buyer who wanted the motor refused to purchase the same. The let export order was issued on 06.05.2004. The petitioner filed a drawback claim in terms of Rule 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. However, the said application was rejected by an order in original dated 06.07.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of procedure and the lapse of which is condonable, especially when the law is beneficial piece of legislation like Cenvat, Drawback, Rebate etc., and in recognition of which Rule 7A has been incorporated. Therefore, the petitioner prayed before the first respondent that in terms of Rule 7A, relaxation of Rule 5 may be allowed and the benefit of drawback may be extended. However, the first respondent while deciding the matter did not consider the alternate submission made by the petitioner but confined himself only to the point of delay. 6. Rule 7A of the said Rules deals with power to relax, in exercise of the powers under the said rules, if the Central Government is satisfied that in relation to the export of any goods, the exporter or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liberal in condoning delay. However, if authorities were to find that claim itself is doubtful, they would be within their domain to reject the application while considering the claim for relaxation of time or for condonation of delay as is permissible under Rule 7A if the Rules, 1995. While examining the sufficiency of cause shown by the exporter or his authorized agent, liberal approach ought to be adopted and technicalities even if any should yield to substantial justice. 8. Reliance was also placed on the decision of the Division Bench of the High Court of Kolkata in the case of Comissioner of Customs, Mumbai v. Terai Overseas Ltd., reported in 2003 (156) E.L.T. 841 (Cal.) wherein it was held that the drawback rules being an incentiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first respondent did not adjudicate upon the alternate plea raised by the petitioner wherein they made a prayer before the first respondent to relax the provision of Rule 5 by exercising the power under Rule 7A. Therefore, to that extent, the matter requires reconsideration and re-examination by the first respondent. Taking a clue from the observations made by the High Court of Karnataka in Acer India Pvt. Ltd., (supra) also bearing in mind that the drawback claim should not be defeated, on the ground of technicalities, appropriate relief should be granted to the petitioner. 12. In the result, the Writ Petition is allowed and the order passed by the first respondent is set aside and the matter is remanded to the first respondent for fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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