TMI Blog1979 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The petitioner-company carries on business of manufacturing automobile and other tyres and selling the same in India and abroad. On about 24th November, 1966, the petitioner shipped for export 371 tyres of the value of Rs. 1,08,820/- on board the vessel s.s. "Effigyni". Excise Duty was payable at all material times on the tyres manufactured by the petitioner under the provisions of the Central Excises and Salt Act, 1944. Under the provisions of that Act and/or under the Customs Act, 1962 and/or the rules made thereunder, manufacturers such as the petitioner, were entitled to receive a "drawback" of excise duty on goods exported by them. In respect of the 375 tyres exported by the petitioner, it became entitled to a "drawback" under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the present petition. 5. Mr. Zaiwalla, the learned Counsel appearing on behalf of the petitioner, challenged the impugned Order issued on 12th June, 1969 by the 1st respondent as having been passed with utter non-application of mind. Mr. Zaiwalla urged that this order is at best non est. 6. At this stage, a reference to the 1st respondent's impugned Order issued on 12th June, 1969 is pertinent. An excerpt of the relevant portions of this order is as under :- "Subject : Drawback of Customs C. Ex. Duties on the Export of Medicine under Shipping Bill No. 1642 of 3-12-1966 per SS EFFIGY. Read :- The Record of the case :- Messrs The Dunlop Rubber Co. (India) Limited, Bombay, exported the goods under claim for Drawback Shipping B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that conclusion, as presumably the poor man was busy searching for rates in respect of medicine instead of searching for rates in respect of tyres which was the commodity exported by the petitioner and to which the drawback application pertained. The 1st respondent either had some other application before him when he passed his order or did not appreciate the petitioner's application. Be that as it may, and whatever be the reason, on the face of it, this order discloses total non-application of mind. 8. In the affidavit-in-reply filed by the Assistant Collector of Customs Kailash Nath Gupta, (not the same Officer who passed the orders), an attempt has been made to explain away the order passed by the 1st respondent, viz. the word "medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has approached the case on an entirely wrong footing....." It was no determination at all. It was lack of co-ordination between hand and head. 9. In these circumstances, the order passed by the 1st respondent is manifestly invalid and demonstrably unjust. It is utterly unsustainable by any standard or any point of views. 10. The only ground on which this petition was opposed by Mr. Dhanuka, the learned Counsel appearing on behalf of the respondent, was on the ground of limitation and laches. Mr. Dhanuka urged that though the 1st respondent's order issued on 12th June, 1969 was received by the petitioner's Bombay office on 23rd June, 1969, the petitioner did not file the appeal before the 2nd respondent till 2nd September, 1971. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granting the petition, unless it has caused prejudice to the opposite party. 12. In the matter before me, delay on the part of the petitioner is undeniable. However, no prejudice whatsoever has been caused to the respondents nor was it contended, and rightly so, that any prejudice has been caused. If at all, prejudice has been caused to the petitioner which was kept out of a large amount of money by reason of the patently unsustainable order passed by the 1st respondent after a gross delay of nearly 3 years. I have not heard it said or read it laid down that a manifestly erroneous, unjust and unsustainable order which has caused no prejudice to the side seeking to sustain it, should be perpetuated only on the ground of laches to the det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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