TMI Blog1982 (9) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... schedule. Since this has not been put in the drawback schedule, the petitioner made repeated representations to the Government of India to consider their request to get the drawback for the exported cotton sewing thread. A notification was issued fixing the rate at Rs. 2.34 per kg. It was stated in the notification that such drawback will be available for the exports made during the period from 1st March, 1973, till 31st December, 1973. Such a notification issued by the Government of India has a statutory sanction under Sections 75(1) and (2) of the Customs Act, 1962, and hence, the exporters get a statutory right to claim the drawback as per the notification issued. 3. After this notification, the petitioner filed a claim once again before the Assistant Collector of Customs on 23rd April, 1976, drawing the attention of the Assistant Collector of Customs to the letter received from the Government of India fixing the drawback at Rs. 2.34 per kg. A reminder was also sent on 25th June, 1976, but not action has been taken by the Customs Department till now. Simultaneously, the petitioner filed an application under Section 130 of the Customs Act before the Collector of Customs, Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-affidavit have, inter alia, alleged that the petitioner on the relevant dates is not entitled to drawback, that in order to be entitled to a drawback, the Central Government should be satisfied that the drawback should be allowed on duties of Customs chargeable under the Customs Act on any class or description of imported material used in the manufacture of such goods and the Government may by notification in the official Gazette direct that the drawback shall be allowed in respect of such goods but such drawback allowance shall be in accordance with and subject to the Rules made under sub-section (2) of Section 75 of the Customs Act, and that to entitle to claim the drawback amount. The exporter should at the time of the export of goods state in the shipping bill at what rate or rates it is claimed, the description and quantity and the value of the goods exported and should also further make a declaration that a claim for drawback under these Rules is made and the duties of Customs and Excise have been paid in respect of packing materials. It was further contended that the claims are not made provisionally and that any claim for drawback is subject to the Rules. The petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently consider as to how far the petitioner is entitled to succeed in the writ petitions. Mr. Habibullah Badsha the learned Counsel for the petitioner, submits that W.P. Nos. 3067 and 3070 of 1978 are overlapping and as such one of them may be dismissed. Accordingly W.P. Number 3070 of 1978 is dismissed as superfluous. There will be no order as to costs. 9. The letter P. No. 601/2501/1/74/DBK/294 dated 8th April, 1975, from the Joint Director (Drawback), Ministry of Finance, Government of India, to the petitioner herein, viz., M/s. Madura Mills, is in respect of Customs and Central Excise Duties Drawback Rules, 1971, which specifies the rates of drawback. The said letter reads as follows : "I am directed to say that on the basis of data furnished by you and certified by the Central Excise Department it has been decided to allow drawback at the rates indicated below on the export of the goods manufactured by you. Description Rate of drawback (per kg.) Cotton sewing thread of following varieties made out of imported cotton. 2/50s A. 15/103, 3/60s A. 17/103 3/80s B. 27/97, 3/28 B. 21/96 2/40s B. 21/15, 3/50 sB. 21/97 3/60s. A. 19/97, 3/60s A. 19/103 3/40s B. 21/103, 2/30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of goods which are exported. - (I) Where it appears to the Central Government that in respect of goods of any class or description manufactured in India and exported to any place outside India, a drawback should be allowed of duties of customs chargeable under this Act on any imported material of a class or description used in the manufacture of 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). (1= A............... (2) The Central Government may make rules for the purpose of carrying out the provisions of sub-section (1), and, in particular, such rules may provide (a) for the payment of drawback equal to the amount of duty actually paid on the imported materials used in the manufacture of the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture of (export goods of that class or description) either by manufacturers generally or by any particular manufacturer ; (b) for the production of such certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes in cotton imported for the purpose of manufacturing cotton sewing thread. Rule 3 of the said Rules definitely gives power to the Government to specify the amount and rates for drawback. The letter dated 8th April, 1975, gives such rates for drawbacks and it is within the powers conferred upon the Central Government both under the Act and the Rules referred to above. Hence, I do not think any notification in the official Gazette for fixing such amount and rate is needed since the letter dated 8th April, 1975, gives statutory right to the petitioner herein to claim drawback. 13. Mr. K.N. Balasubramanian, after reading rule 6 of the said Rules contended that the application ought to have been made by the petitioner before exporting such goods for drawback amount and hence, the claim is not sustainable. Rule 6 deals with cases where amount or rate of drawback has not been determined. Rule 6(1) (a) of the said Rules reads as follows : "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 before exporting such goods, apply in writing to the Central Government for the determination of the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en claimed by the petitioner in all these writ petitions and as such, the respondents made after satisfying themselves as regards the quantum claimed towards the drawback amount in the schedule attached to the writ petitions, pay the drawback dues to the petitioner as expeditiously as possible. Inasmuch as the petitioner's claim for the drawback dues subject to the authorities verifying the correctness of the amount involved in it and the same coming within the period during which the concession is permitted is valid as per law, the respondents are directed to pay back the drawback dues to the petitioner in each of the writ petitions without any further delay. The rule nisi is made absolute in all the writ petitions except W. P. Nos. 2446 and 3070 of 1978. W. P. No. 3070 of 1978 is dismissed as superfluous. 16. As regards W. P. No. 2446 of 1978, which is for issue of a writ of certiorari, I do not think any separate order is needed since the claim made by the petitioner has been answered in favour of the petitioner in the above writ petitions. Hence, W. P. No. 2446 of 1978 is also dismissed as superfluous. There will be no order as to costs in all these writ petitions. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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