TMI Blog2010 (12) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible for the respondent No. 5 to withhold the drawback claim of the petitioner on the ground that a revision application has been filed against the order of Commissioner (Appeals) - Petition is allowed - 11323 of 2010 - - - Dated:- 16-12-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : S/Shri Prakash Shah with S.N. Thakkar, for the Petitioner. Ms. Amee Yajnik, SSC, for the Respondent. [Judgment per : Harsha Devani, J. (Oral)]. Having regard to the controversy involved in the present case which lies in a very narrow compass, the petition is taken up for hearing today. 2. Rule. Ms. Amee Yajnik, learned Senior Standing Counsel waives service of rule on behalf of the respondents. 3. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction against the respondents to forthwith implement and comply with the Order-in-Appeal No. 11/Commr (A)/JMN/2010 dated 21-1-2010 passed by the respondent No. 3, Commissioner of Customs (Appeals) and grant sanction to the petitioner of drawback of Rs. 1,47,59,740/- along with interest at the appropriate rate. 4. The facts stated briefly are that the petitioner herein had i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Appeal. In the meanwhile it appears that the respondents have preferred a revision application against the Order-in-Appeal pursuant to which, a show cause came to be issued to the petitioner calling upon it as to why the order made by the Commissioner (Appeals) should not be annulled. Since, despite the fact that no stay had been granted against the order made by Commissioner (Appeals), the drawback duty was not paid to the petitioner in terms of the order made by the Commissioner (Appeals), the petitioner has moved the present petition seeking the relief noted hereinabove. 7. In response to the petition, the respondent No. 5 has filed an affidavit-in-reply dated 18-10-2010 wherein a stand has been taken that pursuant to the communication dated 16-2-2010 of the petitioner calling upon the Assistant Commissioner to grant drawback in terms of the order made by the Commissioner (Appeals), respondent No. 5 had addressed a letter dated 6-3-2010 inviting the attention of the petitioner to sub-rule (5) of Rule 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 (the Rules), under which it is stipulated that where an order for payment of drawback is made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der for payment of drawback is made by the Commissioner (Appeals), Central Government or any Court against an order of the proper officer of customs, the manufacturer-exporter may file a claim in the manner prescribed in the Rules within three months from the date of receipt of the order so passed by the Commissioner (Appeals), Central Government or the Court, as the case may be. It was submitted that sub-rule (1) of Rule 5 applies in case where there is an order of the proper officer under Section 51 of the Act in respect of which the exporter has no grievance, in which case the exporter would file an application under sub-rule (1) of Rule 5 of the Rules within the period of limitation prescribed thereunder. However, in case the exporter is aggrieved by an order made by the proper officer of customs, he would prefer an appeal against the said order before the appellate authority and thereafter, in case an order of payment is made by the appellate authority, resort would be required to be made to sub-rule (5) of Rule 5 of the Rules and a claim for drawback would be required to be made within the period of limitation prescribed thereunder in the manner prescribed under Rule 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal has been filed against the order giving the relief, unless stay order has been obtained. 12. Referring to the proforma for claiming drawback of re-export, it was pointed that along with application, the exporter is required to submit original documents as prescribed thereunder. That in the facts of the present case, the petitioner has already submitted the original documents along with the original application made under sub-rule (1) of Rule 5 of the Rules and as such, in case the petitioner is required to make another application, the petitioner would not be in a position to annex the original documents inasmuch as, the said documents are lying with the respondent No. 5. In conclusion, it was submitted that the respondent No. 5 is not justified in calling upon the petitioner to file a fresh application as contemplated under sub-rule (1) of Rule 5 of the Rules and in not making payment of drawback in terms of the order made by the Commissioner (Appeals) and that in the circumstances, the petition deserves to be allowed. 13. Opposing the petition, Ms. Amee Yajnik, learned Senior Standing Counsel appearing for the respondents placed reliance upon the averments made in the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer of the customs at the time of export. (b) Copy of Bill of Entry or any other prescribed document against which goods were cleared on importation. (c) Import invoice. (d) Evidence of payment of duty paid at the time of importation of the goods. (e) Permission from Reserve Bank of India for re-export of goods, wherever necessary. (f) Export invoice and packing list. (g) Copy of Bill of lading or Airway bill. (h) Any other documents as may be specified in the deficiency memo. (3) The date of filing of the claim for the purpose of section 75A shall be the date of affixing the Dated Receipt Stamp on the claims which are complete in all respects, and for which an acknowledgement shall be issued in such form as may be prescribed by the Collector of Customs. (4) (a) Any claim which is incomplete in any material particulars or is without the documents specified in sub-rule (2) shall not be accepted for the purpose of section 75A and such claim shall be returned to the claimant with the deficiency memo in the form prescribed by the Collector of Customs within fifteen days of submission and shall be deemed not to have been filed; (b) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim after the order is passed by the appellate authority. In such a case, where the exporter challenges the order made by the proper officer, he would not be in a position to file a claim within the period prescribed under sub-rule (1) of Rule 5 of the Rules in which case, if he ultimately succeeds in appeal, his claim would become timebarred. Sub-rule (5) of Rule 5 of the Rules takes care of such a situation, and provides that in case where the exporter has preferred an appeal against the order of the proper officer, he is required to file the claim within a period of three months from the date of receipt of the order of the appellate authority. Thus, Rule 5(2) of the Rules extends the period of limitation for filing a claim for drawback in case where the exporter has preferred an appeal against the order of the proper officer, in which case the limitation starts running from the date of receipt of the order of the appellate authority. Thus, for the purpose of invoking Rule 5(5) of the Rules, the order made by the appellate authority should be an Order-in-Appeal against an order made by the proper officer. 18. Examining the facts of the present case in the light of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 75 is not paid within a period of one month from the date of filing a claim for payment of such drawback, there shall be paid to that claimant in addition to the amount of drawback, interest at the rate fixed under Section 27A from the date after the expiry of the said period of one month till the date of payment of such drawback. Thus, Section 75A provides for payment of interest to a claimant in case where the drawback payable to him under Section 74 or 75 of the Act is not paid within a period of one month from the date of filing a claim for payment of such drawback. In the present case the petitioner had filed its claim for drawback under Section 74 of the Act on 17th July, 2008. If the stand adopted by the respondent No. 5 were to be accepted, the petitioner would be required to file a fresh application within the period of limitation prescribed under sub-rule (5) of Rule 5 of the Rules and would be entitled to claim interest only if drawback is not paid within one month from the date of the fresh application, which would result in denial to the petitioner of the interest on the drawback claim as computed from the date of its original claim application, that is, 10-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal). However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving relief, unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from serious infirmities and it involves grant of heavy refunds. (Emphasis supplied) Thus, in terms of the aforesaid circular, which is binding on the respondent No. 5, in the absence of any stay order having been obtained, it is not permissible for the respondent No. 5 to withhold the drawback claim of the petitioner on the ground that a revision application has been filed against the order of Commissioner (Appeals) 22. In the light of the aforesaid discussion, the petitioner having already filed its claim for drawback in the prescribed form, which has been allowed by the Commissioner (Appeals), the respondent No. 5 is duty bound to treat the original application made by the petitioner under sub-rule (1) of Rule 5 of the Rules as having been allowed and to grant the duty drawback. Insistence on part of the respondent No. 5 that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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