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TMI Blog2010 (5) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated period as prescribed and permissible under Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. In terms of Rule 5 ibid the claim of drawback is to be filed within three months from the date on which an order permitting clearance and loading of goods for exportation is made by proper officer of Customs. The aforesaid period of three month can be further be extended by three months by the Asstt. Commissioner/Deputy Commissioner of Customs, if he is satisfied that the exporter was prevented by sufficient cause to file his claim in specified period. In this case the drawback was filed after a period of six months from the date of LEO. 2.1 Therefore, for the recovery of drawback amount which was paid erroneously to the appellant, a demand cum show cause notice dated 17-3-05 was issued to the appellant, calling upon them to explain as to why the amount of drawback of Rs. 12,71,496/- should not be recovered along with interest from them. 2.2 The appellant submitted the reply of show cause notice and stated that though there was delay of 6 months and 27 days in filing the drawback claim, the same was condonable. The same was sanctioned af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir letter dated 25-7-2003 had applied to the Commissioner through the Asstt. Commissioner for condonation of delay in filing the claim. It was for the Asstt. Commissioner to forward the applicants' request for condonation of delay to the competent authority. If the Asstt. Commissioner chose to condone the delay himself instead of forwarding it to the Commissioner onwards, the applicants cannot be punished and denied the substantive benefit of drawback admissible to them. 3.3 That, it is well settled law that substantive benefit cannot be denied to an assessee on ground of procedural lapse. As submitted above, the applicants are entitled to the drawback on merits and the only ground for denial of this substantive export benefit is procedural laps of filing drawback claim late by the applicants and administrative lapse on the part of the Asstt. Commissioner in condoning the delay by accepting the explanation for delay given by the applicants as valid and satisfactory. Such procedural/administrative lapse should not result in denial of substantive export benefits and, therefore, demand of drawback paid to the applicants is not proper and sustainable, particularly when no disci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of the erroneous payment of drawback. In the instant case the drawback amount was paid on 16-6-2004 and the said notice demanding it has been issued on 17-3-2005 and served on the applicants on 13-4-2005. Thus the said notice, having been issued beyond the period of six months laid down in Section 28 of the Act, is time-barred and the demand is liable to be set aside on the ground of limitation. 3.6 That, the Asstt. Commissioner's finding that Rule 7 of the said Rules does not prescribe any time limit for demanding back the drawback amount paid and, therefore, the time limit of 30 years prescribed in the Limitation Act would apply, and upheld by the learned Commissioner (Appeals) is not correct and legal for the following reasons: (a) Where the specific law prescribes time-limit, general time-limit prescribed in the Limitation Act would not apply. Moreover, the limitation laid down in Section 112 of the Limitation Act is applicable to civil suits and not to departmental proceeding under the Act which are governed by the specific provisions of the Act. (b) In absence of any time limit prescribed in a rule, reasonable ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order-in-appeal. 4. The personal hearing scheduled for 30-3-2010 was attended by Shri J.P. Kaushik, Advocate for and on behalf of applicant wherein the grounds of revision application was reiterated. 5. Government has perused the relevant case records and the impugned order-in-original and order-in-appeal. 6. Government notes that this is a case where initial delay of 6 months and 27 days was condoned and drawback amounting to Rs. 12,71,496/- was sanctioned vide cheque dated 16-6-2004 by the then Assistant Commissioner of Customs. Later on vide Show Cause Notice dated 17-3-2005 it was termed to be an erroneously sanctioned drawback and vide adjudication order dated 21-11-2005 the said drawback claim was held to be granted erroneously in contravention of Rule 5 of Re-export of Imported Goods (DBK of Customs Duties) Rules, 1995 and thus ordered to be recovered as per provisions of Rule 7 of Re-export of Imported Goods (DBK of Customs Duties) Rules, 1995 read with Section 142(1) of the Customs Act, 1962. The Commissioner of Customs (Appeals) vide order-in-appeal under reference has upheld the said order-in-original. 7. Government now notes that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of 3 months only and that on proper satisfaction about sufficient cause which prevented the exporter from in time filing of the involved DBK claim. Any act done beyond such limit can only be considered as contrary to law and such sanctioned drawback as erroneous. The power to proceed for repayment/recovery are very much thereunder Rule 7 ibid which incorporates manner of sub-section (1) of Section 142 of Customs Act, 1962. Further there is no time-limits provided for this purpose in this applicable Rule 7 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. In view of above Government finds the impugned show cause notice dated 17-3-2005 for recovery was proper as well as within reasonable time and upholds the same as being legal and proper and not hit by any limitation clause. Government further finds that for the purpose of exemption from the provisions of these rules (i.e. for the purpose of condonation of involved delay beyond six months period in this case), the exporter has neither applied properly to the designated authority of Central Government as per Board's Circular No. 12/96-Cus., dated 16-2-1996 (under applicable Rules ibid) nor has even obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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