TMI Blog2017 (8) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... er permitting clearance and loading of the goods for exportation under Section 51 - The claim contemplated under Rule 5 has to be accompanied by documents specified by under Rule 5(2). Rule 5(4) provides that, in the event there are incomplete particulars, the same is required to be returned to the claimant with a deficiency memo. In the present case, the application which is claimed to be an application for duty drawback is the bill of shipping itself. The bill of shipping does not quantify the rupee equivalent of the claim made by the petitioner. The claim is not made in Form of Annexure II of the Rules. The claim has not been lodged with the necessary documents as specified in Rule 5(2) of the Rules of 1995. The petitioner did not mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision. By the impugned order, a request for drawback has been rejected. 2. Learned senior advocate for the petitioner submits that, the petitioner had exported imported fertilizer to Bangladesh. He refers to a letter dated March 28, 2000 and submits that, at the time of the export, the petitioner had expressed its intention to claim the drawback. The claim for drawback was made in the bill of shipping itself. He refers to the bill of shipping and the claim made therein. He submits that the claim for drawback is governed by the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. He submits that, the demand of a drawback is ingrained in the bill of shipping. He submits that, such demand for drawback is to be treated to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation cannot be treated as void ab initio. He submits that, Poulose Matthen (supra) was carried to the Supreme Court where their Lordships did not interfere with the order of the Tribunal. He relies upon 2000 (120) E.L.T. A64 (S.C.) and A65 in support of such contention. 4. Learned advocate for the department submits that the claim of the petitioner was not made in accordance with Rule 5 of the Rules of 1995. Rule 5 describes the form and the time period within which the application for drawback is to be made. Admittedly, the same was not made. The application for drawback cannot be considered to be within the time period. He refers to Rule 7A of the Rules of 1995 and submits that, the Central Government has to receive a representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin a further period of three months. (2) The claim shall be filed along with the following documents, namely :- (a) Triplicate copy of the Shipping Bill bearing examination report recorded by the proper officer of the customs at the time of export. (b) Copy of the 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 document as may be specified in the deficiency me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply with any of the provisions of these rules, and has thus been entitled to drawback, it may, after considering the representation, if any, made by such exporter or agent, and for reasons to be recorded in writing, exempt such exporter or agent from the provisions of such rule and allow drawback in respect of such goods. 7. Rule 5 deals with the manner and time of claiming drawback on goods exported other than by post. The goods of the petitioner comes within the purview of Rule 5 in terms of Rule 5(1). The petitioner was required to file a duty drawback claimed in the form at Annexure II of the Rules within three months from the date of the order permitting clearance and loading of the goods for exportation under Section 51. The provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so does not arise. Poulose Matthen (supra) and the subsequent Supreme Court s decision thereto, therefore, has no manner of application as the facts situation in the present case are different. Moreover, Poulose Matthen (supra) went by the concession given at the behest of the department s representative as recorded in Paragraph 5 thereof. 11. Rule 7A of the Excise Rules, 1995 allows the Central Government to relax compliance with any of the provisions of such Rule after it finds adequate reasons to do so. Rule 7A contemplates a representation to be made to the Central Government for the purpose of exercise of such power. In the present case, it has not been demonstrated that, the petitioner had made an application under Rule 7A to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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