9911796707
TMI Blog2010 (12) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... d Barge "Leighton Mynx" Singapore Flag GRT 2770, NRT 832, built 2002, and filed bill of entry claiming benefit of Exemption Notification No. 27/2002-Cus., dated 1st March, 2002 which came to be allowed. The petitioner, accordingly, paid the duty of Rs. 29,51,948/- on the imported barge vide TR-6 Challan No. 351 dated 16th October, 2007. Vide letter dated 27th December, 2007 the petitioner was informed that it has wrongly availed the exemption to the tune of Rs. 1,67,27,706/- and requested the petitioner to pay the amount immediately. The petitioner, accordingly, paid the aforesaid amount vide TR-6 Challan No. 645 dated 14th February, 2008. The petitioner, exported the said barge vide Shipping Bill No. F-125 dated 2nd June, 2008. The Shipping Bill was filed under the claim of drawback in terms of Section 74 of the Customs Act, 1962 (the Act). 5. The petitioner thereafter, filed an application in the prescribed format claiming total drawback of Rs. 1,47,59,740/-. Vide deficiency memo dated 21-7-2008, the petitioner was called upon to submit original import documents. In compliance with the deficiency memo, the petitioner vide letter dated 13-8-2008 submitted the required origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals), the manufacturer-exporter may file a claim in the prescribed manner in the said Rules, that is, Rules 5(1) and 5(2), and requesting the petitioner to file its claim in the manner prescribed in Rule 5 of the said Rules. The petitioner has filed an affidavit in rejoinder dealing with the averments made in the affidavit in reply. 8. Mr. Prakash Shah, learned advocate appearing for the petitioner submitted that the stand of the respondent No. 5, as stated in the affidavit-in-reply calling upon the petitioner to file a fresh application under Rule 5 of the Rules is unjustified and motivated by the mala fide intention of depriving the petitioner of the interest due on the amount in question under Section 75A of the Act. It was pointed out that the order made by the Commissioner (Appeals) was an order in proceedings arising out of the original claim application made by the petitioner under sub-rule (1) of Rule 5 of the Rules. It was on this application made by the petitioner claiming drawback on re-export of duty paid goods, that the respondent No. 5, Assistant Commissioner, had passed the order dated 22nd September, 2008 rejecting the drawback amounting to Rs. 1,47,59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. It was submitted that in the facts of the present case, the order dated 11-9-2008 of the respondent No. 5 as well as the order dated 21-1-2010 of the Commissioner (Appeals), were orders made on the claim filed by the petitioner under sub-rule (1) of Rule 5 of the Rules. The order made by the Commissioner (Appeals) was not an order of the nature contemplated under sub-rule (5) of Rule 5 of the Rules inasmuch as, the order of the Commissioner (Appeals) was made in respect of an order made by the Assistant Commissioner of Customs on a claim filed under sub-rule (1) of Rule 5 of the Rules and not against an order of the proper officer of customs. It was submitted that in the circumstances, the respondent No. 5 is not justified in calling upon the petitioner to file a fresh application under sub-rule (5) of Rule 5 of the Rules. 10. Inviting attention to Section 75A of the Act, which makes provision for "interest on drawback", it was pointed out that interest on drawback would be payable after expiry of one month from the date of filing of a claim for payment of such drawback, to submit that if the petitioner is required to file a fresh claim as submitted by the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the affidavit-in-reply filed by respondent No. 5. It was submitted that in the light of the provisions of sub-rule (5) of Rule 5 of the Rules, the petitioner is required to file a proper claim application under sub-rule (1) of Rule 5 of the Rules pursuant to the order made by Commissioner (Appeals) and as such, no case is made out so as to warrant interference by this Court. 14. From the facts noted hereinabove, it is apparent that pursuant to re-export of the duty paid barge imported by the petitioner, the petitioner had filed a claim for drawback in the prescribed form claiming drawback on re-export of duty paid goods under Section 74 of the Act. The said claim came to be rejected by the respondent No. 5, Assistant Commissioner of Customs, against which, the petitioner went in appeal before the Commissioner (Appeals) who vide order dated 21-1-2010, allowed the appeal, holding that the petitioner is eligible for drawback of duty on re-export of the duty paid barge imported against the bill of entry dated 16-10-2007. Thus, the order made by the Commissioner (Appeals) is in effect and substance, an order allowing the claim filed by the petitioner under sub-rule (1) of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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) Where exporter complies with requirements specified in deficiency memo within thirty days from the date of receipt of deficiency memo, the same will be treated as a claim filed under sub-rule (1). (5) Where any order 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 this rule within three months from the date of receipt of the order so passed by the Collector (Appeals), Central Government or the Court, as the case may be." 16. On a plain reading of sub-rule (1) of Rule 5 of the Rules, it is apparent that what is required under the said rule is that a claim for drawback under the Rules should be filed in the form at Annexure II within three months from the date on which an order permitting clearance and loading of goods for exportation under Section 51 is made by proper officer of customs. Thus, in a case where a claim is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 aforesaid statutory provisions, it is not in dispute that pursuant to an order made by the proper officer under Section 51 of the Act permitting clearance and loading of goods for exportation, on 17th July, 2008 the petitioner filed a claim for drawback in the prescribed form under sub-rule (1) of Rule 5 of the Rules along with the documents specified in item 14 of the said application, a copy whereof is annexed as Annexure G to the petition. Vide deficiency memo dated 21-7-2008 the petitioner was called upon to submit original import documents, which came to be submitted by the petitioner on 13-8-2008. After issuing a show cause notice to the petitioner as to why the drawback claimed by the petitioner should not be rejected for the reasons stated therein, the claim came to be rejected by the respondent No. 5 vide order dated 22-9-2008. In the appeal preferred by the petitioner against the said order, the Commissioner (Appeals) allowed the appeal and granted the claim of drawback mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 10-7-2008. This could never have been the intention of the rule making authority. The stand of the respondent No. 5 that the petitioner should file a fresh claim as contemplated under Rule 5(5) of the Rules is therefore, contrary to the statutory scheme and therefore, cannot be accepted. 20. Also as rightly pointed out by the learned advocate for the petitioner, sub-rule (2) of Rule 5 of the Rules provides for filing of the documents specified thereunder along with the claim application. Sub-rule (4) of Rule 5 provides that any claim which is incomplete in any material particulars or without the documents specified under 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 within fifteen days of submission and shall be deemed to not have been filed. In the present case, the petitioner has filed the claim on 17-7-2008 along with the required documents which are still lying with the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed 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 should file a fresh application under sub-rule (1) of Rule 5 of the Rules, is contrary to the provisions of the Act and the Rules, and the petitioner appears to be justified in contending that such stand has been adopted only with a view to deny the petitioner the benefit of interest under Section 75A of the Act. 23. This Court in Sterlite Industries (India) Ltd. v. Union of India (supra), has held that the principles of judicial discipline require that the order of a higher authority is required to be followed unreservedly by the subordinate authority; even if an appeal is filed, it cannot furnish a ground for not following the order of the superior forum unless the operation of the order has been stayed by a competent higher forum. In the affidavit-in-reply filed by the respondent No. 5, it is not the case of the respondent that any superior forum has made an order staying the order made by ..... 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