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M/s Acer India Pvt Ltd Versus Union of India, The Central Board of Excise And Customs, Ministry of Finance Department of Revenue. Technical Officer (Drawback) , Commissioner of Customs (Preventive) , Assistant Commissioner of Customs

2015 (8) TMI 581 - KARNATAKA HIGH COURT

Drawback allowable on re-export of duty-paid goods – Barred by Time – Petitioner presented duty drawback claim application before fifth respondent belatedly which was not accepted by fifth respondent on ground that claims were time barred – Held that :- Rule 5 of Rules, 1995 mandates that exporter would be entitled to file claim for duty draw back within outer limit of six months by explaining delay – Reasons for delay was petitioners inability to collect documents at time and file same before a .....

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VERSEAS LTD [2002 (10) TMI 109 - HIGH COURT AT CALCUTTA] that while considering application for drawback, documents filed in support of claim should be considered liberally and drawback cannot be denied on mere technicalities or by adopting narrow and pedantic approach, since duty drawback is incentive scheme – In view of said observation impugned order set aside – Matter remitted to first respondent to consider applications of petitioner – Decided in favour of Appellant. - Writ Petition No. 403 .....

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1962 has been rejected on the ground that applications filed by the petitioner is beyond the prescribed period. Petitioner is also seeking for further direction to fourth respondent to allow duty drawback claimed by petitioner under Section 74 of the Customs Act, 1962 and in the alternate, petitioner has prayed for the matter being remanded to first respondent for adjudication afresh after quashing of the order dated 13.05.2014 (Annexure-A). 2. I have heard the arguments of Sri G Shivadass , lea .....

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ods so imported are received at their factory at Pondicherry. Subsequently, goods imported were not taken to be used domestically and as such, after making certain value additions, petitioner claims to have exported said goods to Bangladesh against purchase orders received from its customers located at Dhaka, Bangladesh and having exported the same under 10 shipping bills during the period November, 2006 to 2007 as per Annexure-B, petitioner is said to have received payment in free foreign excha .....

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aluru and also claim required to be furnished with original copies of shipping bills filed at Petrapole , West Bengal and Bill of Entry filed at Chennai, collection of original copies of documents filed at various locations resulted in a delay ranging from 6 months to 13 months as against time limit of three months prescribed under Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. Hence, petitioner is stated to have presented the duty drawback claim application before fifth r .....

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the petitioner seeking for condonation of delay. After extending personal hearing to petitioner, first respondent by communication dated 13.05.2014 (Annexure-A) intimated the petitioner rejection of claim or non condonation of delay by the authorities enclosing therewith orders/reasons assigned for rejection of claims/prayer for condonation of delay and as such, petitioner is before this Court. 5. It is the contention of learned Advocate appearing for petitioner that when authorities have categ .....

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sion by contending that first respondent has now amended extant Rules namely, Re-export of Imported Goods (Drawback of Custom Duties) Rules, 1995 (for short 'the Rules, 1995') in particular, Rule 5 by amendment dated 26.05.1995 whereunder Rule 5 which provides for manner and time of claiming drawback on goods exported other than by post has undergone change namely, earlier period fixed for three months, has been now extended up to six months, in all, nine months is allowed and as such, c .....

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upport the impugned order and submits that inconsistent stand taken by the petitioner and its Custom House Agent was the prime reason which swayed in the mind of first respondent to reject petitioner's claim for duty drawback. Hence, he prays for rejection of these writ petitions. 7. Having heard the learned Advocates appearing for parties and on perusal of the records, it would emerge that goods which have been exported by the petitioner under the Bill of Entries (referred to in the impugne .....

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account of goods imported having been exported by the petitioner, after making such value additions. Application under Rule 5 of the Rules, 1995 came to be submitted by petitioner before fifth respondent which was stated to have not been accepted on account of same being belated. Rule 5 of the Rules, 1995 mandates that claim for drawback under the said Rules should be filed within three months from the date on which an order permitting clearance and loading of goods for exportation under Sectio .....

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months by explaining the delay. In the event of delay being beyond six months, power to relax the prescribed period is available to the Central Government under Rule 7A of the Rules, 1995 and on such cause being shown, Central Government if satisfied that in relation to the export of any goods, the exporter or his authorized agent for reasons beyond his control, failed to seek for drawback within the period prescribed under Rule 5, exempt such exporter or agent from the provisions of Rule 5 or .....

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awback before jurisdictional Commissioner of Customs and on same being refused to be taken on record, petitioner approached first respondent by filing an application dated 04.10.2008. Third respondent forwarded said application dated 04.01.2008 submitted by the petitioner for condonation of delay to the Commissioner of Customs (Preventive), Kolkatta on 11.01.2008 vide Annexure-D and has called upon the jurisdictional Commissioner to furnish factual report who in turn has stated by his reply date .....

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on of goods which have been imported and which is the subject matter of duty drawback having been exported by the petitioner. In fact, when the claim submitted by the petitioner was not accepted by the jurisdictional Commissioner, petitioner had approached first respondent. Third respondent by communication dated 28.09.2012 (Annexure-K) has intimated the Commissioner of Customs (Preventive), Kolkata - fourth respondent that such refusal would be irregular and even if time barred applications are .....

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etitioner and as such, cause shown by the petitioner was disbelieved for not being entertained or delay being condoned. In view of the fact that first respondent having amended Rule 5 of the Rules, 1995 and extended the period from 6 months to 9 months and the power available under Rule 7A to the Central Government to relax in relation to export of any goods if the Central Government is satisfied that reasons assigned by the exporters or his authorized agent for belatedly filing an application f .....

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has affirmed the view that non filing of application for condonation of delay was beyond the control of respondent therein and Rule 15 of Customs and Central Excise Duties Draw Back Rules, 1971 was attracted to the facts and circumstances of the said case which order came to be affirmed by Hon'ble Apex Court in SLP (Civil) No.17492/2007. This would clearly indicate that authorities while examining the application for relaxing or for condonation of delay has to be more pragmatic or in other .....

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ught to be adopted and technicalities even if any should yield to substantial justice. 12. In fact, under similar circumstances, Division Bench of Kolkata High Court in the case of COMMISSIONER OF CUSTOMS, MUMBAI vs. TERAI OVERSEAS LTD reported in (2003) 156 ELT 841 (Cal.) has held that while considering an application for drawback, documents filed in support of the claim should be considered liberally and drawback cannot be denied on mere technicalities or by adopting narrow and pedantic approa .....

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visions of the Drawback Rules, this Court is of the opinion that the same is an incentive oriented scheme for augmenting export and claim for drawback cannot be withheld on the basis of mere technicality. This Court finds that if it is ultimately found that benefit of the Drawback Claim has been given to a party unauthorisedly , there are provisions under Rule 16(a) of the said Rules for its recovery where the export proceeds were not realized. Therefore, at the time of granting the Drawback Cla .....

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