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TMI Blog2018 (5) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents cannot deny the claims for the reasons set out in the impugned orders. In fact the petitioner's rights cannot be infringed for the fault committed by the Department. Entitlement to interest - Whether interest is payable on the said amount and the period for which interest has to be paid? - Held that: - the fault lies on the Department in not keeping the file safe and at this distance of time, the Department cannot state that the petitioner should have produced adequate copies as and when the Department called for. The Department having accepted the drawback claim along with original documents, was bound to protect the same till orders are passed and disposal of the documents should be done in accordance with the Rules, which cover destruction of records. Therefore, the petitioner is entitled for interest on the delay in effecting payment of the drawback claimed. Rate of interest - from what date interest is payable? - Held that: - Since the Court is convinced that the petitioner is entitled for the amount, interest of justice would be met if the respondent paid interest from the date of filing of this writ petition, i.e., 31.07.2003 - With regard to rate of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner on account of exports of sewing threads, which were made by the petitioner. In each of the writ petitions, the petitioner had given details about the quantity exported and the vessel, which carried export products. In an annexure to the writ petitions, the details of the shipping bills, date, quantity in Kgs., rate and amount due were furnished in a tabulated form. In the said writ petitions, counter affidavits were filed by the respondents, wherein except for two writ petitions, in all other writ petitions the respondents have admitted the averments made by the petitioner with regard to factum of export and the vessel in which the export was done. The writ petitions were disposed of by common order dated 30.09.1982. The operative portion of the order reads as follows: In the absence of any prohibition in the rules made under the Customs and Central Excise Duties Drawback Rules, 1971 prohibiting the petitioner in claiming the draw back on the strength of the aboesaid letter, in my view, there is no need to apply for relaxation of any of the provisions of the rules under Rule 15 of the said Rules. Failure to make the application before exporting such goods, in my vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued, the petitioner has been addressing the respondent by letters dated 04.01.1983 and 24.07.1987, for which they received a reply dated 30.10.1987, stating that it is not possible for the Customs House to ascertain the quantum of drawback on verifying the correctness of amount involved and therefore, it is not possible to settle the remaining claim. 4. In so far as one of the writ petitions, viz., W.P.No.3030 of 1978 is concerned, the respondent filed counter disputing the shipment. However, the learned counsel for the petitioner has brought to the notice of this Court that though there was a denial in respect of the shipment covered in W.P.No.3030 of 1978, the drawback amount has been paid by the respondent as per the proceedings of the Deputy Collector of Customs (APPG), Madras dated 30.10.1987. 5. To be noted, in the same order, the claims made by the petitioner, that is, the claims, which were covered in eight writ petitions, were settled. The petitioner subsequently reiterated for payment of the balance amount and filed a writ petition in W.P.No.10387 of 1992. The said writ petition was disposed of by order dated 17.07.2000, taking note of the argument of the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been denied by the Department till date and the same stands fully admitted. 7. Further, the petitioner pointed out that they have been diligently contesting the issue in the year 1978 and that the Department cannot take a stand that the Shipping Bills, Daily Lists, Manifests, Drawback Registers are not traceable and hence their claim cannot be paid. In the said letter, the petitioner pointed out the following four points to support their stand and the Department cannot deny the same. (i) The correctness of our claim has not been denied and stands fully admitted; (ii) The matter was sub-judice even since 1978 until its final disposal in 2000. The Department was fully aware of the legal proceedings and was also represented and accepted the decisions of the Court; (iii) There is no time limit prescribed under the drawback rules for settlement of claim for drawback; (iv) Other records such as Daily Lists, Manifest, Drawback Register should still be available; 8. After the above communication, the petitioner has been sending reminder letters and ultimately the Deputy Commissioner by order dated 12.10.2001, rejected the claim. As against the order of the Deputy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the Department cannot now take a stand that unless a full set of documents, which is virtually a duplicate set, is produced, the respondent Department will not act on the petitioner's claim. A situation has come, where both the parties do not have the full set of documents. However, the Department has not denied the exports and what is required to be verified is the quantum alone. 12. In the considered view of this Court, the best document, which could be referred to and relied on is the counter affidavit filed in the writ petitions, which were filed in the year 1978. This is so because, in each of the writ petitions, the respondent has filed separate counter affidavits. Totally, 31 writ petitions were filed by the writ petitioner of which in two writ petitions, relief was not granted because one was a duplication, as the same item was covered in another writ petition and the other being writ of certiorari. Therefore, those two writ petitions were closed. Thus, in respect of 29 writ petitions, the claim made by the petitioner has been admitted except one writ petition, viz., 3030 of 1978, in which the respondent though had disputed the shipment, ultimately in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from taking a different stand as a result the petitioner is entitled for the drawback claim as claimed. 14. The next question would be as to whether interest is payable on the said amount and the period for which interest has to be paid. The learned counsel for the petitioner referred to the decision of the Hon'ble Supreme Court in the case of Sandvik Asia Ltd. v. Commissioner of Income Tax I, Pune and others reported in (2002) 2 SCC 508, wherein the Court directed that the assessee should be compensated with the payment of interest for the delay caused by the Department. The learned counsel also referred to the judgment of the Division Bench of this Court in the case of M/s.Vamadev Exports v. The Commissioner (Appeals) in Writ Appeal No.64 of 2016 dated 16.12.2016, which was rendered taking note of the decision in Sandvik Asia Ltd. (supra) and granted compensation, as it was a claim for interest on interest. 15. Admittedly, at the first instance, the petitioner had filed all original documents in the proper format while submitting the drawback claim. Therefore, the petitioner had complied with the obligation cast upon them under the relevant regulations. It is the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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