TMI Blog2018 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Rajendra Salecha, for the Petitioner. Shri Anuroop Singhi with Aditya Vijay, for the Respondent. JUDGMENT [Judgment per : K.S. Jhaveri, J.]. - By way of this writ petition, the petitioners have prayed for following reliefs : (i) By issue of an appropriate writ, order or direction, the impugned order, dated 7-1-2004 passed by the learned Respondent No. 2 be quash and set aside and also the order, dated 24-1-1998 and 18-12-2003 passed by the Respondent Nos. 4 3 respectively may also please be quashed and set aside. (ii) Any other appropriate relief may be granted to the petitioner which this Hon ble Court may deem fit and proper in the facts and circumstances of the present case by issuing an appropriate writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other High Court has considered the retrospectivity of Rule 16A of the Customs and Central Excise Duty Drawback Rules, 1995 and accordingly the matter was adjourned. 3. The counsel for the respondents submits that he has been unable to lay hands to any such decision in this regard. 4. The matter requires consideration. 5. Hence Rule. 6. Mr. Ajay Shukla waives service for the respondents. 7. The counsel for the petitioners submits that for the present, the petitioners are not desirous of pressing the prayer for interim relief. 8. The prayer for interim relief is, accordingly, rejected. 5. Counsel for the appellant has contended that the Rule which was sought to be noticed was issued and the reasonings which were adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced in the context of excise duty for the first time only by way of Rule 16A of the Duty Drawback Rules, 1995, with effect from 6-12-1995. The High Court observed that there being no corresponding earlier substantive provision in the Central Excise Act, 1944, Rule 16A could obviously not be made retrospective to apply even to those exports, like those in the instant case, which were made prior to 6-12.-1995. Therefore, in this respect, the High Court was in complete agreement with the order, dated 11-6-1999 passed by the Central Government in the appellant s revision petition. The said order has attained finality with the dismissal of the Civil Appeal filed by the Government. It was further held that the order, dated 12-6-2003 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That would be the position even de hors Rule 16A of the Duty Drawback Rules, 1995. Therefore, we are inclined to agree that Rule 16A is a clarificatory provision clarifying the position of law which already exists in the form of Section 75 of the Customs Act, 1962, and therefore, will have retrospective effect. The appeal is accordingly, dismissed. 7. Counsel for the respondents Mr. Singhi has opposed the contention of the petitioners which is based on rules which were not applicable when he had done export. The export was done between March, 1995 to May, 1995. The rules came into force on 26-5-1995. Therefore, the contention that during the period from March, 1995 to May, 1995 when the export was done he was not entitled to the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter, the basic contention of the petitioners that Section 16A cannot be retrospective effect is required to be accepted in view of the decision of the Supreme Court in the case of Surinder Singh v. Union of India (supra). The contention of Mr. Singhi is attractive on the first point but he has not received the foreign exchange and claimed duty drawback. In that view of the matter, it will not be appropriate to decide that issue in the present proceedings. 10. In that view of the matter, the recovery under Section 16A is not permissible and, therefore, the show cause notice which was issued under Section 16A is required to be quashed and set aside. 11. Consequently, the writ petition is allowed. The show cause notice, dated 26-11- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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