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TMI Blog2019 (8) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... t is through a file noting and a simple query by the Commissioner as to the grounds for condonation which has been interpreted as a rejection of the application. The file noting confirms that the Commissioner has simply noted that a condonation can be considered where an applicant had provided adequate evidence of being prevented by sufficient cause in filing the application within the prescribed time but if no reason has been cited then on what grounds the condonation can be granted - other lacuna of the proceeding is that in case the Commissioner was not satisfied on the reasons assigned by the petitioner in his condonation application, he should have afforded an opportunity to the petitioner to clarify the position but certainly the manner of disposal of the condonation application leaves much to be desired. The remarks of the Commissioner on the condonation application would not amount to rejection of the condonation application in absence of any order to such effect. Besides, the fact that such remark was interfered by the Commissioner (Appeals) to find merit in the explanation to the delay given by the petitioner coupled with the revised time limit under the Circular dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Motor Spirit (M.S), Superior Kerosene Oil (SKO) and Liquified Petroleum Gas(LPG) to the Nepal Oil Corporation. It is the case of the petitioner that the petitioner has been exporting petroleum products through Land Customs Stations from its different marketing installations and is entitled to claim fixation of brand rate under the Drawback Rules . The case of the petitioner is that it is in this connection and for fixation of brand rate for the month of April, 2010 that the petitioner made an application to the respondent No.4, the Joint Commissioner of Central Excise in the prescribed format on 29.06.2010, a copy of which is at Annexure-1 series. The petitioner also filed application for condonation of delay on 18.08.2010 before the respondent No.3, the Commissioner of Central Excise, a copy of which is at Annexure-2. This application of the petitioner was held not maintainable by the respondent No.4, Joint Commissioner on grounds that the Commissioner had refused to condone the delay. A copy of such order dated 08.08.2011 circulated vide memo No.795 dated 09.08.2011 is impugned at Annexure-3 to the writ petition. The petitioner filed a statutory appeal before the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We thus posted this matter on 29.07.2019 and again on 08.08.2019 allowing the parties to address on this issue because if the main application itself stood rejected then there was no occasion for any condonation to be filed. The position was contested by Mr. Pathy to submit that since the order dated 2/5.07.2010 had never been communicated to the petitioner, it had no meaning. He further submits that in case the main application itself was rejected then there was no occasion for the statutory authority to entertain the condonation application which indeed was entertained and consequently rejected to hold the main application as not maintainable. According to Mr. Pathy, if the main application filed for fixation of brand rate was rejected on 2/5.07.2010 then the orders holding the application not maintainable consequent upon rejection of the condonation application had no meaning. Proceeding here from, he submits that since by the orders impugned the statutory authorities have held the application filed by the petitioner for fixation of brand rate not maintainable because the condonation had been refused by itself confirms that this order dated 2/5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 days. Mr. Pathy has invited our attention to the chart at Annexure-12 series to submit that it contains the details of the exports made by the petitioner from its different marketing installations and a cursory glance of the delay caused in filing the application would confirm that it is in between 1 to 30. In other words, it is within the power of condonation vested in the Commissioner. Since the order of the Joint Commissioner dated 08.08.2011 impugned at Annexure-3 simply held the application not maintainable on grounds that the condonation application had been rejected by the Commissioner and the reasons thereof was not explained, although the petitioner in his condonation application at Annexure-2 had specifically mentioned that it is in the process of gathering information from its marketing location covering different Land Customs Station that some delay had occurred and which was prayed to be condoned, that we were persuaded to examine the reasons that crossed the mind of the Commissioner to refuse condonation. On perusal of the file, we were surprised to note that no formal order was passed in this regard although the consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner to condone the delay in filing application under the Drawback Rules which had been further expanded by the amendment dated 24.6.2010. Rule 6 of the Drawback Rules as it stood amended under the 2006 Amendment Rules in so far as it provides for condonation reads as under: 6(1)(a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer or exporter of such goods may, within sixty days from the date relevant for the applicability of the amount or rate of drawback in terms of sub-rule (3) of rule (5), apply in writing to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, having jurisdiction over the manufacturing unit, of the manufacturer exporter or, of the supporting manufacturer, as the case may be, for determination of the amount or rate of drawback thereof stating all the relevant facts including the proportion in which the materials or components or inputs services are used in the production or manufacture of goods and the duties paid on such materials or components or the tax paid on input services: Provided that such Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factum of export was not in dispute and that the dispute was on the issue of delay, which was fit for condonation on the reasons assigned as also in view of the revised time limit prescribed in the circular No.13 of 2010 dated 24.6.2010. In our opinion, where Rule 6 of the Drawback Rules as it stood amended by the Amendment Rules, 2006 allowed an applicant to file his application within 60 days of the date of Let Export Order which could be extended by further 30 days by the Commissioner on recording satisfaction, that the petitioner filed his application for fixation of brand rate within this period of 90 days accompanied with an application for condonation of delay and before such application of the petitioner as well as the condonation application could be disposed on its merits, the time limit itself got revised much prior thereto on 24.6.2010, the statutory authorities were bound to consider the application because not only the time limit was revised much before filing of the application by the petitioner on 29.6.2010 but even the condonation application gave valid reasons for the delay caused. The Commissioner (Appeals) has taken note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the order passed by the Commissioner (Appeals) is lawfully neither sustainable on merits nor on the manner of discharge. Having heard counsel for the parties we hold that the remarks of the Commissioner on the condonation application would not amount to rejection of the condonation application in absence of any order to such effect. Besides, the fact that such remark was interfered by the Commissioner (Appeals) to find merit in the explanation to the delay given by the petitioner coupled with the revised time limit under the Circular dated 24.6.2010, the order of the Joint Secretary dated 16.11.2015 in purported exercise of revisional jurisdiction impugned at Annexure-5 together with letter dated 03.05.2017 of the Under Secretary, Government of India in its Ministry of Finance impugned at Annexure-7 are on complete misappreciation of the legal position and are accordingly quashed and set aside. The writ petition is allowed and since the claim of the petitioner has been allowed by the Commissioner (Appeals) the consequences shall follow and made available to the petitioner within a period of 3 months from the date of receipt/ production of a cop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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