9911796707
TMI Blog1998 (4) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... orted on 27-10-1984 under Shipping Bill dated 23-10-1984. The dealers of the petitioner in Nepal obtained the shipping bills from the customs authorities and forwarded the same on 31-10-1984. However, the documents were taken by them before posting the original, but since xerox copies were not acceptable to the respondents for grant of incentives, the petitioner approached the Assistant Collector of Customs, Raxual for fresh set of shipping bills and attested true copies of the shipping bills were made available to the petitioner only on 8-10-1986. Thereafter, the petitioner applied on 22-10-1986 for grant of export incentive and cash compensatory support along with xerox copy of the shipping bill duly attested, border crossing certificate issued by the Nepal Customs, certificate issued by the Grindlays Bank and indemnity bond guaranteeing that no other claim had been made for the shipping bill. 3.However, the first respondent rejected the claim on 11-11-1986 stating that the claim was time barred and not made within six months from the date of export. The appeal by the petitioner was rejected by the second respondent on 27-9-1987. Further, appeal to the third respondent was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss of the originals, claims should be preferred within a period of six months from the date of exports on the basis of attested copies and shipping bills along with an affidavit and indemnity bond. There was no provision made in case of late application where the documents were lost. The rejection of the application was valid and in accordance with the prescribed policy. Para 323(4) of the Handbook of Import-Export Procedure 1984-85, would be applicable only to applications where all the original documents are produced. The rejection of the writ petitioner's application on the ground of limitation was only in accordance with the prescribed policy and the order of the rejection was not vitiated. 6.The learned Counsel, for the writ petitioner referred to a number of decision and also to textbooks on interpretation of statute and submitted that the rejection of application for the cash compensatory allowance was wholly misconceived. He also submitted that the circulars relied on by the Department were marked `Confidential' and they were never made available to the petitioner or other customers to enable them to follow the circulars and make the claims. There was also nothing to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts made by them on mere technicalities is to say the least immoral. Whether original documents were filed or copies were given was wholly immaterial. Necessary safeguards like indemnity could always be taken. Refusal to give cash compensatory allowance on the untenable ground that the claim was barred by limitation is the height of injustice. 10.Paragraph 323 of the Handbook of Import-Export Procedure 1985-88 provides for time limit for submission of applications. In the instant case, as already stated, originals were not available and they were lost in transit. Copies were applied for and made available only long after the six months period insisted on and pleaded by the respondent's Department. There also does not appear to be any logic in the rule relied on a period of six months in the case of copies and two years for originals. There is no rhyms or reason in such a rule relied on by the Department. 11.As rightly pointed out by the learned Counsel for the petitioner, the Paragraph 323 of the said handbook dealing with the time limit for submission of applications, does not mention anything about the production of the originals. Paragraph 327 of the said handbook requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l substantive in character and were built in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other. There can be no doubt that the circular cannot deprive the petitioner of its just relief for cash compensatory allowance. The Supreme Court further observed that (there are conditions and conditions), some may be substantiate, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach more importance to the non-observance of all conditions irrespective of the purposes they were entitled to serve. It has not been brought to my notice that the time limit fixed for making an application with certified copies as six months, was based on any policy decision. 15.The Supreme Court also referred to the dictum of Lord Denning in Wells v. Minister of Housing and Local Government [1967 (1) WLR 1000] as follows : "How I know that a public authority cannot be estopped from doing its public duty, but I do not think it can be estopped from relying on a technicality and this is a technicality." The Supreme Court also referred to F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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