TMI Blog2012 (6) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... thing has been shown on behalf of the respondent as to when it had been received by the petitioner - petitioner had stated that the Central Value Added Taxes Certificate had been submitted by the petitioner to the respondent –Petitioner is entitled for the grant of duty draw back under Section 74 of the Customs Act, 1962. Accordingly, the respondent is directed to grant duty draw back - writ petition stands allowed - Writ Petition Nos.7290 of 2011 - - - Dated:- 22-2-2012 - M. Jaichandran , J For Appellant: Mr. Joseph Prabakar For Respondent: Mr. P. Mahadevan JUDGEMENT Heard the learned counsels appearing for both sides. 2. The writ petitions have been filed praying that this Court may be pleased to issue a writ of Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duties. However, the respondent had issued a Deficiency Memo, dated 23.10.2009, directing the petitioner to produce the (1) Non-Availment of Cenvat Certificate/Declaration and the Bank Realization Certificate/GR Waiver. 5. Pursuant to the receipt of the Deficiency Memo, dated 23.10.2009, the petitioner had filed the Central Value Added Taxes Certificate, vide latter, dated 24.12.2009. The petitioner had also produced the Bank Realization Certificate from the Bank concerned, showing the details of the payments received, on 3.11.2010. While so, by a letter, dated 6.12.2010, the respondent had stated that the Claim filed by the petitioner company has been treated as 'Claim Not Filed'. Thus, the respondent had returned the Drawback claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 51 of the Customs Act, 1962 is made by the proper officer belonging to the Customs Department. 8. It has been further stated that as per the proviso to Rule 5(1) of the Drawback Rules, the petitioner ought to have submitted the necessary documents described therein. The petitioner was also expected to file all the other documents, as specified in the Deficiency Memo issued to the petitioner. The petitioner had submitted the copies of the shipping bills and the other necessary documents. Further, Deficiency Memos, dated 11.5.2009, 11.8.2009 and 23.11.2009, were issued to the petitioner, with the direction to submit all the necessary documents, including the Bank Realization Certificate/GR Waiver and the Central Value Added Taxes Certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the communication issued by the respondent, refusing to accept the Duty Drawback claim of the petitioner is contrary to the provisions of Section 74 of the Customs Act, 1962, and Rule 5(2) of the Drawback Rules. In spite of the fact that the petitioner had submitted all the necessary documents for the sanction of the drawback amount the respondent had issued the impugned communication dated 6.12.2010 stating that the claim of the petitioner was incomplete and that it had been treated as Not Filed'. 11. The learned counsel had further submitted that in the Deficiency Memo dated 23.10.2009 issued by the respondent the petitioner had been directed to produce the Non-availment of CENVAT Certificate/Declaration and the Bank Real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submitted that the impugned communications dated 6.12.2010 had been issued by the respondent as the petitioner had failed to submit the required documents in support of the draw back claim, within the period of limitation as provided under the proviso to Rule 5(4)(b) of the Drawback Rules. Therefore, it would not be open to the petitioner to claim that the respondent ought to have accepted the drawback claim made by the petitioner. As such, the writ petitions, filed by the petitioner are devoid of merits and therefore they are liable to be dismissed. 14. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available this court finds it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te had been submitted by the petitioner to the respondent, as soon as it had been received from the authority concerned. It is also noted that the Bank Realization Certificate may not be needed for considering the claim of the petitioner for Duty Draw Back as per the decision made in W.P. No.11752 of 2009 dated 27.10.2009 which had been confirmed by a Division Bench of this Court by its order dated 17.8.2010 made in W.A. No.1505 of 2010 and in view of the decision of the High Court of Judicature at Bombay reported in Commissioner of Customs Drawback Recovery Cell Vs. Phoenix Cement Ltd. 2010 (259) E.L.T. 372 (Bom.). 18. As such the claim of the respondent that the petitioner had not submitted the required documents as per the Deficiency M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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