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TMI Blog2025 (2) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 provides that the claim for drawback should be accompanied by the copy of the export contract or letter of credit, copy of packing list, copy of ARE-I, wherever applicable, insurance certificate, wherever necessary and copy of communication regarding the rate of drawback where a drawback claim is for a rate determined under the Rule 6 or Rule 7 of the Rules, 1995 by the Commissioner of Central Excise as the case may be relating to the cases where either the amount of rate of drawback has not been determined or to be determined at a lower rate. Therefore, essentially there has to be a claim to be made for claiming drawback for the goods exported other than by post on the basis of the triplicate copy of the shipping bill detained by the proper Officer to be accompanied by the relevant documents as specified in Sub-rule (2) of Rule 13 of the Rules, 1995. On perusal of the facts considered by the Appellate and the Revisional Authority, it appears that at the relevant time in the year 2005-06, the goods were manually cleared for export by the appellant vide ten shipping bills and therefore the petitioner was required to be provided with the triplicate copy of the shipping bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India, the petitioner has prayed for the following reliefs : "(a) That this Hon'ble Court maybe pleased to issue a Writ of Certiorari or Writ of mandamus or any other similar Writ or Order calling for the records and documents from the Office of the Respondents, culminated in the Order dated 31.08.2020 passed by the Second Respondent and after examining the legality thereof, quash and set aside the impugned Order dated 31.08.2020 passed by the second Respondent (Annexure F); (b) Pending the hearing and final disposal of the Petition, the Respondents, their subordinates or agents may be restrained by an Order of injunction of this Hon'ble Court from anyway initiating any recovery of the amount of Drawback from the Petitioner." 3. The brief facts of the case are as under : 3.1. The petitioner was engaged in the business of trading of various items and in the course of their business, exported ten consignments of 'Indian Raw Cotton' to China under ten different shipping bills during the period from May, 2005 to November, 2006. 3.2. It is the case of the petitioner that on the export made by the petitioner during the aforesaid period, the petitioner was el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the documents beyond five years cannot be accepted and onus of filing triplicate copy of shipping bill was on the petitioner and denied the drawback claim of the petitioner confirming the order passed by the Commissioner of Customs (Appeals). 4.1. Learned advocate Mr. Hardik Modh for the petitioner submitted that both the Commissioner of Customs (Appeals) as well as the Revisional Authority have ignored the Rule 13 of the Rules, 1995 which is unambiguous and clearly stipulates that the triplicate copy of the shipping bill shall be deemed to be the claim for drawback and therefore, there was no question of filing belated claim or time barred claim by the petitioner and it was incumbent upon the respondent No. 3 to sanction the refund claim as the Rules do not provide a manner in which claim of drawback has to be filed by the exporter and there is no procedure to file a separate claim in any other manner. It was therefore submitted that the respondent No. 3 has rightly sanctioned the claim by order dated 29.06.2012 considering the Police Report filed by the petitioner along with an Indemnity Bond and other relevant documents which were available with the petitioner at the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, to collect the connected documents from the warehouse of the petitioner located at Mumbai but while coming from the warehouse to CST, Mumbai by train, the said documents were lost in transit for which the FIR was registered by the petitioner. 4.7. Learned advocate Mr. Hardik Modh referring to the above contents of the aforesaid affidavit dated 28th January, 2025 submitted that in view of the facts stated on oath by the petitioner, the bona fide claim of the petitioner should not be rejected as the petitioner could not take any follow up action for the claim which otherwise ought to have been sanctioned by the respondent-Authority in the year 2006 itself after the export obligations were completed by the petitioner in accordance with the Rules. 4.8. It was further submitted that there is no dispute with regard to the drawback claim of the petitioner and Commissioner (Appeals) as well as the Revisional Authority have mis-interpreted Rule 13 of the Rules, 1995 by shifting the burden on the petitioner for making the refund claim by producing the original triplicate copy of the shipping bill, however, the original copy of the shipping bill was to be retained by the proper Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was therefore submitted that in the facts of the case when the claim of the petitioner for drawback was required to be sanctioned on the basis of the filing of the shipping bills in pursuance to Rule 13 of the Rules, 1995, the respondent-Authority could not have rejected the same on the ground of limitation attributing such delay on part of the petitioner. 4.11. Reliance was also placed on the order passed by the Revisional Authority in case of Sarda Energy and Mineral Limited wherein, upholding the order passed by the Commissioner (Appeals), the Revisional Authority held that once the assessee satisfies the provisions of Rule 13 of the Rules, 1995 as the date on which the Customs Officer makes an order permitting the clearance and loading of the goods for exportation, itself is a claim of drawback and Rule 13 of the Rules, 1995 does not prescribe any time limit for filing of the drawback claim as contended by the Department. It was therefore submitted that the impugned order passed by the respondent-Authority is contradictory to what is held in the said case. It was therefore submitted that when there is no time limit for filing drawback claim as prescribed under Rule 13 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the Triplicate copy of Shipping Bill as the Drawback claim, but his order was silent on remaining aspects of Rule 13 viz. whether such drawback claim (Triplicate copy of Shipping Bill) had been retained by the proper officer who made order under section 51 and if so, whether the same was available on records and verified by the adjudicating authority before sanctioning drawback, especially since the exporter claimed to have lost all original documents pertaining to exports; whether such drawback claim was accompanied with the documents specified at sub-rule 2(i) to (v); whether any deficiency memo was issued to the exporter in terms of sub-rule 3(a) and if so, whether they had filed proper compliance in this regard; Adjudicating authority had not examined as to whether it could be a case where the exporter could not have furnished all documents or information or could not have complied with the deficiency memo during the relevant period and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It has been observed that the order (Order-in-Original) does not discuss as to how the adjudicating authority had verified the facts relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of permitted exports, the triplicate copy of the shipping bills is the only valid document for sanction of drawback. In this context, Respondent No. 2 has observed that in case where such document is not available or misplaced, Public Notices / Standing Orders issued by the Department for reconstruction of lost documents for sanction of drawback would have been available to the applicant. In the standing Order No. 03/2009 dated 04.02.2009 of the Commissioner of Customs (Export), Jawaharlal Nehru Custom House, Nhava Sheva, Distt. Raigad, prescribing procedure for reconstruction of Shipping Bill, it has been mentioned that the procedure is devised basically to ensure that there is no double use of the Shipping Bills. 15. That, contentions and averments made at Ground (H) of the Petition are not true and denied. While contending that even if the drawback claim of Kandla Customs were to be sanctioned by officer of Customs at Bhuj at relevant time, it was the responsibility of the officer to follow the law and forward the copy to the proper officer after retaining the same and the Petitioner cannot be held liable in any manner whatsoever for the said lapse on the part of the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xportation: Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation." 6.2. Section 74 of the Chapter X of the Customs Act, 1962 provides for drawback allowable on re-export of duty-paid goods which reads as under : "74. Drawback allowable on re-export of duty-paid goods (1) When any goods capable of being easily identified which have been imported into India and upon which [any duty has been paid on importation,- (i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or (ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been entered for export and in respect order permitting the clearance and loading thereof for exportation has been made under section 51 by the proper officer, [or being goods entered for export by post under section 82 and in respect of which an order permitting clearance for exportation has been made by the proper officer] a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the manufacture or processing of such goods or carrying out any operation on such goods), the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2): [PROVIDED that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 7 of these rules. (3) (a) If the said claim for drawback is incomplete in any material particulars or is without the documents specified in sub-rule (2), shall be returned to the claimant with a deficiency memo in the form prescribed by the Principal Commissioner of Customs or Commissioner of Customs, as the case may be within 10 days and shall be deemed not to have been filed for the purpose of section 75A. (b) where the exporter resubmits the claim for drawback after complying with the requirements specified in the deficiency memo, the same will be treated as a claim filed under sub-rule (1) for the purpose of section 75A (4) For computing the period of one month prescribed under section 75A for payment of drawback to the claimant, the time taken in testing of the export goods, not more than one month, shall be excluded.] [(5) Subject to the provisions of sub-rules (2), (3) and (4), where the exporter has exported the goods under electronic shipping bill in Electronic Data Interchange (EDI) under the claim of drawback, the electronic shipping bill itself shall be treated as the claim for drawback.]" 7. On perusal of Rule 13 of the Rules, 1995, it appears that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as available on records and verified by the adjudicating authority before sanctioning drawback, especially since the exporter claimed to have lost all original documents pertaining to the exports; whether such drawback claim was accompanied with the documents specified at sub-rule 2(i) to (v): whether any deficiency memo was issued to the exporter in terms of sub-rule 3(a) and if so, whether they had filed proper compliance in this regard, etc. Impugned order does not indicate any reasons for the inordinate and inexplicable delay of 5½ years on the part of the respondent-exporter for claiming such a big amount of drawback, if at all they had actually filed the drawback claim along with requisite documents way back in 2005/2006. Adjudicating authority has not examined as to whether it could be a case where the exporter could not have furnished ail documents or information or could not have complied with the deficiency memo during the relevant period, and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It is noticed that the adjudicating authority had made: a reference to AC, Customs, Bhuj vide letter dated 16.04.2012 to asc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom filing the drawback claim, if not sanctioned by then. Adjudicating authority ought to have discussed this provision when he considered the date of filing drawback claim as the date of allowing exportation, i.e. 5½ years ago, even when the exporter (through their CHA) reportedly claimed drawback only on: 14.05.2011. Thus; I find that the adjudicating authority. has overlooked various critical components of the law and procedures, and thus the impugned order suffers from grave multiple legal infirmities. 10. I must also mention, as stated in the impugned order; that the exporter through their CHA vide letter dated 14.05.2011 had requested for drawback claim for the aforesaid shipping bills which were filed nearly after more than 5½ years. However, adjudicating authority applied rule 13 of Drawback Rules and considered the date of filing drawback claim as the date of exports. I am of the view that adjudicating authority has gone overboard to alter the date of filing drawback claim, without examining the facts of the case. ie. whether the triplicate copy of shipping bills were filed along with all required documents and whether any further compliance was pending fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, the petitioner relied upon the Rule 5 (3) of the Drawback Rules, 1995 contending that the said Rule stipulates that the provision of Section 16 or Sub-section (2) of Section 83 of the Customs Act, 1962 shall determine the amount or rate of duty drawback applicable to any goods exported under the said Rules and as the Rule 5 (3) of the Rules, 1995 does not stipulate any time period for making the drawback claim, the claim made by the petitioner in the year 2011 has rightly been sanctioned by the respondent No. 3. The Revisional Authority after considering the submissions of the petitioner as well as the Department, upheld the order passed by the Commissioner of Customs (Appeals) by arriving at following findings and observations: "16. Government further observes that at the time of customs clearance, the EDI system at Mundra port was not functional; therefore the goods were manually cleared for export by the applicant vide 10 manual shipping bills. As per the procedure in respect of goods manually cleared, the exporter is required to be provided with the triplicate copy of shipping bill for lodging drawback claim. It is apparent from the facts narrated that the applicant was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim and taken note of these facts. 18. Though, as per the provisions of Rule 13 of the Customs, Central Excise Duties, and Service Tax Drawback Rules, 1995 triplicate copy of shipping bills filed for export goods should be deemed to be a claim for drawback filed on the date of permitted exports, the triplicate copy of the shipping bills is the only valid document for sanction of drawback. As stated in preceding para and as per the applicants own say, the triplicate copy in respect of all the 10 manual shipping bills were lost by the applicant and therefore, they could not file the drawback claims earlier and in time. In case where such document is not available or misplaced, Public Notices/Standing Orders issued by the Department for reconstruction of lost documents for sanction of drawback would have been available to the applicant. However, instead of resorting to such a means, the applicant after 5 and ½ years filed a complaint with the Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai for loss of such documents on 14.05.2011 and remarkably on the very same day the applicant requested for Drawback claim for the said shipping bills through their CHA." 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports and follow up on drawbacks was being looked after by Mr. Chandrakant Lodaya. However, Mr. Chandrakant Lodaya left the Petitioner's employment in the year 2006. 3. I say that the on account of the improper transfer of charge and responsibilities the Petitioner's representatives were under impression that all claims of duty drawback for all their eligible exports were processed and allowed. Sometime in the year 2011, petitioners during the internal examination and weeding out of documents, realized that they had not received drawback for all their exports. 4. The Petitioners on realizing that the claims for drawback was pending, immediately instructed its peon Mr. Sudhakar Pagare to collect the connected documents from the company's warehouse located in Cotton Green area, at Mumbai. Unfortunately while coming from Cotton Green to CST, Mumbai by train, the said documents were lost in transit, after which FIR were registered in this regard. 5. I say that the delay in perusing the Drawback claims were not on account of any deliberate act or negligence on part of the Petitioner and the Petitioners did not stand to gain in any manner by delaying the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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