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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 ..... g the order passed by the Commissioner (Appeals) Custom, Central Excise and Service Tax, Patna. The third order questioned by the petitioner is the order dated 08.08.2011 passed by the respondent No.4, the Joint Commissioner, Central Excise and Service Tax, Patna whereby the application filed by the petitioner for fixation of brand rate for the April, 2010 was not held maintainable because the Commissioner in exercise of powers vested under Rule 6(1) had refused to condone the delay. Copies of the orders dated 3.5.2017 passed by the Government of India under Section17, on revision and by the Joint Commissioner are impugned at Annexures 7,5 and 3 respectively to the writ petition. Facts of the case briefly stated is the petitioner is a public sector undertaking of the Government of India and is engaged in the business of manufacture of Petroleum products. A memorandum is stated to have been entered between Government of India and the Government of Nepal for export of petroleum products namely, High Speed Diesel (H.S.D), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rejection of the condonation application is backed by reasons and/or whether the Commissioner (Appeals) having found merit in the explanation given by the petitioner in his condonation application to condone the delay, there was any occasion for the superior authorities to interfere therewith. While handing over the records a list of dates was also provided by the learned counsel for the department and which made reference to an order dated 2/5.07.2010 holding the application of the petitioner for fixation of brand rate, not maintainable. This fact was obviously an obstruction in consideration of the claim of the petitioner because in case the application of the petitioner for fixation of brand rate under 'the Drawback Rules' filed on 29.6.2010 itself was held not maintainable on 2/5.07.2010 then there was no occasion to entertain the condonation application filed for condonation of delay in filing the application for fixation of brand rate under 'the Drawback Rules'. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. According to Mr. Pathy, whatever deficiencies was noticed, was removed by the petitioner and that those letter was either not communicated or not acted upon because the condonation application was taken up for consideration on merits. We find substance in the submission made by Mr. Pathy, because at page 79 we find re-submission of revised application by the petitioner on 23.07.2010 together with enclosures and which was acted upon as confirmed from the subsequent correspondences on the records of the file. Meaning thereby, the deficiencies being removed, the application was entertained and in the meanwhile the petitioner filed his application for condonation of delay on 18.08.2010 which according to the order of the Joint Commissioner at Annexure-3 was rejected by the Commissioner as he did not consider it a fit case for allowing extension of 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be desired. In our opinion, the communication in this regard made by the Additional Commissioner through the letter dated 16/22.09.2010 is not a correct reproduction of the state of affairs in absence of any formal order of rejection and consequently the order of the Joint Commissioner in treating the said observation as a rejection of the condonation application to hold the application of the petitioner as not maintainable suffers from the same infirmity. Such mechanical rejection was questioned by the petitioner in appeal and the Commissioner (Appeals) by his order dated 11.10.2012 at Annexure-4 has taken note of the stipulations present in Rule 6 and 7 of 'the Drawback Rules' in so far as it vested jurisdiction in the 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 rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into force and within the extended time period allowed under the amended Rules of 2006, which was condonable at the hands of the Commissioner. Now while the application of the petitioner was filed within the condonable period provided in the proviso to Rule 6(1) that the time limit so prescribed itself was amended vide Circular No.13 of 2010 circulated on 24.6.2010 i.e prior to the filing of the application on 29.6.2010 to claim for fixation of brand rate under 'the Drawback Rules', he became entitled to the benefit of the revised time limit. The Commissioner (Appeals), while considering the appeal preferred by the petitioner has taken note of the fact that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be exercised by the Government of India in its Ministry of Finance which would obviously be the head of the Department but such power has been usurped by the Joint Secretary which exercise is de hors the statutory conferment. It is also informed by Mr. Pathy that the Joint Secretary to the Government of India is an officer in the rank equal to the Commissioner (Appeals). Thus apart from the fact that the orders impugned fail to sustain on merits even on the decision making process, the order dated 16.11.2015 purportedly exercised power by the Joint Secretary Government of India to interfere with 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 d ..... 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