Home Case Index All Cases Customs Customs + HC Customs - 2018 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (7) TMI 1019 - HC - CustomsDuty Drawback - condonation of delay in terms of Rule 17 of the Customs and Central Excise Duties Drawback Rules, 1995 - supplementary claim - revision of rates with retrospective effect - the claims were rejected by the second respondent on the ground of delay as they were filed after 12 months period including the three months condonable period granted under the Drawback Rules - supplementary claim - Rule 15 of the Drawback Rules - Held that:- Rule 15 can be invoked when the exporter finds that the amount of drawback paid to him is less than what he is entitled to - In the instant case, the supplementary claim made by the petitioner for the 27 export consignments was as a result of the Central Government issuing N/N. 77/2003-CUS(NT) dated 18.09.2003, revising the drawback rates with retrospective effect on the goods, which were exported by the petitioner. Thus, the supplementary claim made by the petitioner was not on account of any error or mis-calculation done by the petitioner or for any reason attributable to the petitioner. What occasioned the supplementary claim was the decision of the Government of India to revise the drawback rates with retrospective effect. Thus, it goes without saying that if there is a revised rate of drawback determined that too with retrospective effect, then every exporter, who is entitled for the benefit of the notification, is entitled to maintain a supplementary claim as a matter of right - the period of limitation as per Rule 15(1)(i) read with the second proviso is 3 months + 9 months, i.e., = 12 months. The language of Rule 17 is so couched to confer power on the Central Government to grant exemption in favor of an exporter from the provisions of any of the Rules and allow drawback. The power of exemption is conferred on the Central Government to exempt an exporter, who has failed to comply with any of the provisions of the Drawback Rules, the object being that the exporter should be entitled to drawback. In fact, the Rules specifically empower the Central Government not only to exempt exporter from the provisions of the Rules for compliance of any of the provisions, but also make an order allowing drawback in respect of such goods. The power conferred on the Assistant Commissioner / Deputy Commissioner of Customs under the second proviso to Rule 15 is no doubt limited. So far as the procedural aspect is concerned, always liberal interpretation is given so that the exporter or the importer gets the benefit of the scheme framed by the Government - what the petitioner has stated is that they were not properly advised that they would have entitled to get the benefit of the revised drawback rate only upon filing a supplementary claim and on enquiry, they were orally informed that the drawback amount would be automatically credited to their account, since it is the decision of the Government of India to revise the rate of drawback retrospectively - the petitioner should not be non-suited on the ground stated by the respondents. Period of delay - Held that:- So far as the first 12 months is concerned, there is sufficient power vested with the second respondent to exercise discretion and condone the delay of 9 months. In the instant case, there is a further delay of 7 days over and above 12 months period, though cumulatively taken delay is 9 months and 7 days. However, the first 9 months period is a condonable period even at the instance of the proper officer, the second respondent. Thus, even if a different interpretation is sought to be given to Rule 17, this is not a case where the petitioner should be denied the benefit of revised rate on such interpretation, as the delay beyond 12 months is only 7 days. Petition allowed.
|