9911796707
TMI Blog2018 (7) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. What occasioned the supplementary claim was the decision of the Government of India to revise the drawback rates with retrospective effect. Thus, it goes without saying that if there is a revised rate of drawback determined that too with retrospective effect, then every exporter, who is entitled for the benefit of the notification, is entitled to maintain a supplementary claim as a matter of right - the period of limitation as per Rule 15(1)(i) read with the second proviso is 3 months + 9 months, i.e., = 12 months. The language of Rule 17 is so couched to confer power on the Central Government to grant exemption in favor of an exporter from the provisions of any of the Rules and allow drawback. The power of exemption is conferred on the Central Government to exempt an exporter, who has failed to comply with any of the provisions of the Drawback Rules, the object being that the exporter should be entitled to drawback. In fact, the Rules specifically empower the Central Government not only to exempt exporter from the provisions of the Rules for compliance of any of the provisions, but also make an order allowing drawback in respect of such goods. The power conferred on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d including the three months condonable period granted under the Drawback Rules. This order, passed by the second respondent, was put to challenge before the Commissioner of Customs (Appeals), who by order dated 15.02.2005, dismissed the appeal. Challenging the same, the petitioner filed Revision Applications before the first respondent under Section 129DD of the Customs Act, 1962. The revision applications were dismissed by order dated 21.10.2005, which order is impugned in this writ petition. 3. Mr.Hari Radhakrishnan, learned counsel appearing for the petitioner submitted that the impugned order suffers from errors apparent on the face of the record, as the specific prayer made by the petitioner for exercising the power under Rule 17 of the Drawback Rules, which is a power of the Central Government to relax any of the provisions of the Drawback Rules, was not considered and hence, the order passed by the first respondent is liable to be set aside. In this regard, the learned counsel placed reliance on the decision of this Court in the case of Greaves Cotton Ltd. vs. Union of India and Others in W.P.No.10359 of 2007 dated 04.01.2018. It is submitted that the said case arose und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x only in relation to export of goods and not for the purpose of filing a supplementary claim under Rule 15 of the Drawback Rules. Thus, it is submitted that the concurrent findings recorded by the authorities may be confirmed and the writ petition may be dismissed. 9. Heard the learned counsels for the parties and carefully perused the materials placed on record. 10. The petitioner had exported 27 consignments to various countries covered under various shipping bills, the details of which have been furnished along with the writ petition. The petitioner claimed drawback in terms of the rates announced by the Central Government under Section 75 of the Customs Act, 1962 read with Drawback Rules, 1995. By Notification No.77/2003-CUS(NT) dated 18.09.2003, the Central Government retrospectively revised the drawback rates for those goods, which were exported by the petitioner. On account of the revised rate of drawback sanctioned by the Government, the petitioner had to necessarily file a supplementary claim as per Rule 4 of the Drawback Rules and the period for filing such an application is three months from the date of publication of the notification in the Official Gazette. Admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods exported other than by post. One of the conditions under the Rule was filing of insurance certificate, which according to the Revenue was mandatory. The Court opined that the Drawback Rules is an incentive oriented scheme for augmenting export and claim for drawback cannot be withheld on the basis of mere technicality and therefore, at the time of granting drawback claim, the authorities have to proceed on reasonable basis and cannot adopt a narrow and pedantic approach. Thus, having found that the main purpose of the Rule is to boost export and the export having taken place and the foreign exchange involved in the process had also been earned, the applications should not have been rejected. 13. In Wipro Ltd., the assessee filed application claiming duty drawback under the Brand Rate System, which was rejected on the ground of delay. One of the contentions raised by the Revenue was that, there is no power to condone the delay under Rule 15 of the Drawback Rules. The assessee referred to the discretionary power vested with the Central Government in para 70 of the Export and Import Policy framed by the Union of India. The Division Bench held that the non-filing of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deals with supplementary claim, which reads as follows:- 15.Supplementary claim. - (1) Where any exporter finds that the amount of drawback paid to him is less than what he is entitled to on the basis of the amount of rate of drawback determined by the Central Government or Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, he may prefer a supplementary claim in the form at Annexure III : Provided that the exporter shall prefer such supplementary claim within a period of three months, - (i) 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 ; (ii) Where the rate of drawback is determined or revised upward under rule 6 or rule 7, from the date of communicating the revised said rate to the person concerned; (iii) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended by the Court and in this regard, the learned counsel drew parallel to the provisions of the Arbitration and Conciliation Act, 1996. While the Court would accept the submission of the learned Central Government Standing Counsel for the respondent, what is required to be examined in the instant case is whether the Drawback Rules provide for any other remedy or power for the assessee or the Department. If we examine Rule 17, it is seen that the power to relax the Rules has been granted to the Central Government. 21. It is the submission on behalf of the respondents that the power under Rule 17 cannot be used to condone the delay in filing a supplementary claim under Rule 15 of the Rules. Such an interpretation was not given by the first respondent in the impugned order, nor explicitly stated in the counter affidavit filed on behalf of the respondents. For better appreciation, Rule 17 is quoted below. 17.Power to relax. - If the Central Government is satisfied that in relation to the export of any goods, the exporter or his authorised agent has, for reasons beyond his control, failed to comply with any of the provisions of these rules, and has thus been entitled to drawba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o state that Rule 17 would have no application is a very narrow and incorrect way of interpreting Rule 17. Above all, the object of the Drawback Rules is to encourage and boost exports and if the entitlement for drawback is interpreted to be on par with the exemption notification, then what is essential is compliance of the mandatory conditions. 25. So far as the procedural aspect is concerned, always liberal interpretation is given so that the exporter or the importer gets the benefit of the scheme framed by the Government. In the instant case, as noted above, the supplementary claim necessitated on account of a decision taken by the Government of India to revise the drawback rate retrospectively. The petitioner would state that he was not properly advised and much later was informed that he should file a supplementary claim to avail the revised drawback. In this background, the petitioner would state that he was not aware of the procedure. The respondents in the counter affidavit have taken strong exception to such a statement made by the petitioner stating that ignorance of procedure cannot be excused for condonation of delay, which is beyond the permissible period of 12 mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
