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TMI Blog1999 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... 39/25/88 Ex. Gr., dated 12-10-1991 and to quash the same and to direct the respondents to refund a sum of Rs. 4,39,360.56 claimed as Drawback. 2.In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this court to allow the writ petition as prayed for, Per Contra, though no counter-affidavit has been filed the learned Additional Central Government Standing Counsel appearing for the respondents argued the matter and requested this Court to dismiss the writ petition for want of merits. 3. Heard the arguments advanced by the learned Counsel appearing for the respective parties. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the learned Counsel appearing for the respective parties during the course of their arguments. 4. In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to serve legal notices and accordingly served the legal notices claiming the total losses incurred due to the faulty equipment. In January, 1986, there was a telex from TOCCO offering to take back the equipment and pay the cost collected from the petitioner. But at that time the petitioner was only interested in bringing the equipment into operation. In February, 1986, M/s. TOCCO sent a telex informing that the furnaces need substantial modification to be put into operation involving huge amount to expenditure and strains. The Company even at this time opted for putting the equipment into operation even if it was at some additional cost. M/s. Toshniwal's time and again tried their best under their principals guidance and failed to locate where the mistake was M/s. A.P. State Financial Corporation, who had financed the equipment and other assets were also seriously seized of the situation since the petitioner was not able to go into production even after 18 months of the receipt of the major machinery. They had written several letters to M/s. Toshniwals from time to time requesting them to set the complaint right. They had even threatened to deregister their name from their supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or drawback of 98% of the Customs Duty paid should have been made within 2 years from the date of payment of duty on the importation of the goods, namely 18-10-1984. But in view of the circumstances as set forth above, the petitioner was able to claim the drawback only on 31-12-1988, due to factors totally beyond his control. The petitioner's claim for drawback is therefore covered by proviso to Section 74. The petitioner approached the Ministry of Finance and also the Chairman, Central Board of Excise and Customs for relaxation of the 2 years period of reciting of the history of the case for the purpose of grant of the drawback in terms of proviso to Section 74(1). The petitioner has now received an Order No. 539/25/88, dated 12-10-1991 stating that the petitioner's request for condonation of delay has been rejected by the Ministry and the claim has been rejected as inadmissible in view of the delay in re-export. No other reasons have been given in order. Hence this writ petition. 6. It is contended by the petitioners that the impugned order is violative of principles of natural justice and is arbitrary, illegal and capricious and does not disclose any reason except the Ministry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of drawback. In this case it is no doubt true that the equipment in question herein was never used and after trial runs stage the equipment failed to perform and in view of the failure of the equipment and in view of the fact that the Americal supplied agreed to take back the equipment after re-export of the equipment, the petitioner filed a claim for drawback of the Customs Duty paid on the equipment through the second respondent on 31-12-1988. The petitioner subsequently also addressed a letter dated 16-2-1989 to the 2nd respondent requesting the Board to condone the delay under Section 74 and grant drawback of 98% of the customs duty paid on the import of the goods which were re-exported. It is also admitted fact that the parties are eligible to the grant of drawback provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further periods as it may deem fit.Therefore from the above it is very clear that the claim for drawback of 98% of the Customs Duty paid should have been made within 2 years from the date of payment of duty on the importation of the goods. In this case that is 18-10-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said machinery and were ready to take back the same. In February, 1986 they have clearly informed the petitioner about the fate of the machinery in the following terms : "the furnaces need substantial modification to be put into operation involving huge amount to ..expenditure and strains." Even after all these things the company opted to put the equipment into operation even if it was at some additional cost. Therefore from the above it is very clear that the delay was only due to the petitioner and the same was well within their control. They could have re-exported the same even in the year 1986 when the manufacturers have clearly declared the position of the machinery. Therefore, there is no meaning in now contending that the delay was only due to factors totally beyond their control. Therefore in this case there is no sufficient cause for condoning the delay and that therefore in the respondents have rightly rejected the claim of the petitioner by exercising their discretionary power. Therefore the various contentions raised by the petitioner challenging the impugned order cannot at all be accepted. 8Further it is also contended by the learned Counsel. appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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