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TMI Blog2025 (2) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... g and final disposal of the Petition, the Respondents, their subordinates or agents may be restrained by an Order of injunction of this Hon'ble Court from anyway initiating any recovery of the amount of Drawback from the Petitioner." 3. The brief facts of the case are as under : 3.1. The petitioner was engaged in the business of trading of various items and in the course of their business, exported ten consignments of 'Indian Raw Cotton' to China under ten different shipping bills during the period from May, 2005 to November, 2006. 3.2. It is the case of the petitioner that on the export made by the petitioner during the aforesaid period, the petitioner was eligible for 1% of the FOB value of the export consignment with duty drawback totaling to Rs. 11,79,528/- in terms of the Draw Back Schedule No. 5201 Rules, 1995 (for short 'the Rules, 1995') and for sanction of the drawback, the triplicate copy of the respective shipping bills were required to be deemed as a claim for drawback and such triplicate copy shall be retained by the proper Officer in terms of Rule 13 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. 3.3. It is the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping bill shall be deemed to be the claim for drawback and therefore, there was no question of filing belated claim or time barred claim by the petitioner and it was incumbent upon the respondent No. 3 to sanction the refund claim as the Rules do not provide a manner in which claim of drawback has to be filed by the exporter and there is no procedure to file a separate claim in any other manner. It was therefore submitted that the respondent No. 3 has rightly sanctioned the claim by order dated 29.06.2012 considering the Police Report filed by the petitioner along with an Indemnity Bond and other relevant documents which were available with the petitioner at the relevant point of time. 4.2. It was further submitted that the onus to retain the triplicate copy of the shipping bill and sanction of the drawback claim is on the proper Officer and therefore, the respondent Nos. 2 and 3 could not have rejected the claim on the ground of limitation. 4.3. It was submitted that the petitioner was not responsible for any delay in sanction of the drawback claim as it was failure on the part of the respondent No. 3-Adjudicating Authority to act in compliance of the provisions of the Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take any follow up action for the claim which otherwise ought to have been sanctioned by the respondent-Authority in the year 2006 itself after the export obligations were completed by the petitioner in accordance with the Rules. 4.8. It was further submitted that there is no dispute with regard to the drawback claim of the petitioner and Commissioner (Appeals) as well as the Revisional Authority have mis-interpreted Rule 13 of the Rules, 1995 by shifting the burden on the petitioner for making the refund claim by producing the original triplicate copy of the shipping bill, however, the original copy of the shipping bill was to be retained by the proper Officer and to be transferred for processing of the claim and the petitioner was not at all concerned for producing the original triplicate copy of the shipping bill and therefore, it was submitted that the respondent-Authorities have not taken any action and the petitioner therefore should not suffer on account of such negligence and inaction on part of the respondents and claim could not have been rejected on ground of limitation attributing the same to the petitioner without considering the negligence and lethargy for not sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals), the Revisional Authority held that once the assessee satisfies the provisions of Rule 13 of the Rules, 1995 as the date on which the Customs Officer makes an order permitting the clearance and loading of the goods for exportation, itself is a claim of drawback and Rule 13 of the Rules, 1995 does not prescribe any time limit for filing of the drawback claim as contended by the Department. It was therefore submitted that the impugned order passed by the respondent-Authority is contradictory to what is held in the said case. It was therefore submitted that when there is no time limit for filing drawback claim as prescribed under Rule 13 of the drawback rules of the Rules, 1995, the legitimate drawback claim of the petitioner could not have been denied on ground of limitation. 5.1. On the other hand, learned advocate Mr. C.B. Gupta for the respondents submitted that there is no explanation given by the petitioner for remaining silent and inactive from 2006 to 2011 for the claim of the drawback. It was submitted that the explanation given by the petitioner for the delay caused in making the claim after more than five and half years is nothing but an eyewash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the documents specified at sub-rule 2(i) to (v); whether any deficiency memo was issued to the exporter in terms of sub-rule 3(a) and if so, whether they had filed proper compliance in this regard; Adjudicating authority had not examined as to whether it could be a case where the exporter could not have furnished all documents or information or could not have complied with the deficiency memo during the relevant period and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It has been observed that the order (Order-in-Original) does not discuss as to how the adjudicating authority had verified the facts relating to second proviso of section 75 which stipulates that if the sales proceeds are not received within the time allowed under FEMA, 1999, drawback would not be admissible; that had the date of fling the claim was considered as 14.5.2011 when they actually made their claim before the adjudicating authority, the same would have been hit by the law of limitation; that none of the case laws cited in the impugned order (Order-in-Original) pertain to situations where the claimant failed to furnish the entire set of original d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eva, Distt. Raigad, prescribing procedure for reconstruction of Shipping Bill, it has been mentioned that the procedure is devised basically to ensure that there is no double use of the Shipping Bills. 15. That, contentions and averments made at Ground (H) of the Petition are not true and denied. While contending that even if the drawback claim of Kandla Customs were to be sanctioned by officer of Customs at Bhuj at relevant time, it was the responsibility of the officer to follow the law and forward the copy to the proper officer after retaining the same and the Petitioner cannot be held liable in any manner whatsoever for the said lapse on the part of the officer, Petition is silent how original Triplicate copies of Shipping Bills came in possession of the Petitioner who held them till 12.05.2011 when they were lost." 5.3. Referring to the above averments, it was submitted that the petitioner is not entitled to the drawback claim, more particularly, in view of the Standing Order No. 3/2009 dated 04.02.2009 prescribing procedure for reconstruction of the shipping bill which clearly provides that the reconstruction cannot be done after five years. 5.4. Learned advocate Mr. C.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty-paid goods (1) When any goods capable of being easily identified which have been imported into India and upon which [any duty has been paid on importation,- (i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or (ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or (iii) are entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent, of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if-] (a) the goods are identified to the satisfaction of the '[Assistant Commissioner of Customs or Deputy Commissioner of Customs] as the goods which were imported; and (b) the goods are entered for export within two years from the date of payment of duty on the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y operation on such goods), the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2): [PROVIDED that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of the value of the imported materials used in the 'manufacture or processing of such goods or carrying any operation on such goods] or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf: PROVIDED FURTHER that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the [Foreign Exchange Management Act, 1999 (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the deficiency memo, the same will be treated as a claim filed under sub-rule (1) for the purpose of section 75A (4) For computing the period of one month prescribed under section 75A for payment of drawback to the claimant, the time taken in testing of the export goods, not more than one month, shall be excluded.] [(5) Subject to the provisions of sub-rules (2), (3) and (4), where the exporter has exported the goods under electronic shipping bill in Electronic Data Interchange (EDI) under the claim of drawback, the electronic shipping bill itself shall be treated as the claim for drawback.]" 7. On perusal of Rule 13 of the Rules, 1995, it appears that the same provides for the manner and time for claiming drawback on goods exported other than by post and that the triplicate copy of the shipping bill for export of goods is deemed to be a claim for the drawback filed on the date on which the proper Officer of the Customs makes an order permitting clearance and loading of goods for exportation under Section 51 of the Customs Act, 1962 and said claim of drawback is required to be retained by the proper Officer making such order. 8. Sub-section (2) of Rule 13 of the Rules, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able delay of 5½ years on the part of the respondent-exporter for claiming such a big amount of drawback, if at all they had actually filed the drawback claim along with requisite documents way back in 2005/2006. Adjudicating authority has not examined as to whether it could be a case where the exporter could not have furnished ail documents or information or could not have complied with the deficiency memo during the relevant period, and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It is noticed that the adjudicating authority had made: a reference to AC, Customs, Bhuj vide letter dated 16.04.2012 to ascertain whether any drawback was sanctioned earlier on the same shipping bills, though the reply only indicates that no cheque was issued to the exporter. This correspondence clearly reveals that the adjudicating was not having any records with him on the subject exports, and the drawback was sanctioned merely on the basis of the documents managed by the respondent-exporter and submitted before him. Impugned order reveals that the respondent-exporter had obtained certificate from CST on 14.05.2011 showing details of lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I must also mention, as stated in the impugned order; that the exporter through their CHA vide letter dated 14.05.2011 had requested for drawback claim for the aforesaid shipping bills which were filed nearly after more than 5½ years. However, adjudicating authority applied rule 13 of Drawback Rules and considered the date of filing drawback claim as the date of exports. I am of the view that adjudicating authority has gone overboard to alter the date of filing drawback claim, without examining the facts of the case. ie. whether the triplicate copy of shipping bills were filed along with all required documents and whether any further compliance was pending from the respondent-exporter against any deficiency memo, if issued, etc. For example, if the respondent-exporter had not submitted all the documents specified under rule 13 (2) of Drawback Rules, or if they had not furnished compliance to the deficiency memo, if any, issued under rule 13 (3), then there is no reason for considering the date of export as the date. of filing drawback claim for the purpose of rule 13 (1) or section 75A: In such cases, date of filing drawback claim should be 14.05.2011 or even after that (as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revisional Authority after considering the submissions of the petitioner as well as the Department, upheld the order passed by the Commissioner of Customs (Appeals) by arriving at following findings and observations: "16. Government further observes that at the time of customs clearance, the EDI system at Mundra port was not functional; therefore the goods were manually cleared for export by the applicant vide 10 manual shipping bills. As per the procedure in respect of goods manually cleared, the exporter is required to be provided with the triplicate copy of shipping bill for lodging drawback claim. It is apparent from the facts narrated that the applicant was also provided with the original triplicate copy of the shipping bill for the said purpose. However, the triplicate copy of the shipping bill was lost by the applicant as has been recorded in the Police Complaint filed on 14.05.2011 with Assistant Commissioner of Police, Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai, The applicant is conspicuously silent about the exact date of loss of original documents which also included triplicate copy of shipping bill. If these documents were lost on or around 14.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were lost by the applicant and therefore, they could not file the drawback claims earlier and in time. In case where such document is not available or misplaced, Public Notices/Standing Orders issued by the Department for reconstruction of lost documents for sanction of drawback would have been available to the applicant. However, instead of resorting to such a means, the applicant after 5 and ½ years filed a complaint with the Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai for loss of such documents on 14.05.2011 and remarkably on the very same day the applicant requested for Drawback claim for the said shipping bills through their CHA." 12. The Revisional Authority also referred to and relied upon the Public Notice No. 336/2001 dated 10.12.2001 and the Standing Order No. 3 of 2009 dated 04.02.2009 for reconstruction of the lost triplicate copies of the shipping bills and held that as the petitioner filed the drawback claim after five and half years of exports, cannot take shelter behind the Rule 13 of the Rules, 1995 that triplicate copy of the shipping bill for export of goods which deem to be a claim for drawback when the main document required for fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey had not received drawback for all their exports. 4. The Petitioners on realizing that the claims for drawback was pending, immediately instructed its peon Mr. Sudhakar Pagare to collect the connected documents from the company's warehouse located in Cotton Green area, at Mumbai. Unfortunately while coming from Cotton Green to CST, Mumbai by train, the said documents were lost in transit, after which FIR were registered in this regard. 5. I say that the delay in perusing the Drawback claims were not on account of any deliberate act or negligence on part of the Petitioner and the Petitioners did not stand to gain in any manner by delaying the proceedings. 6. I state that what is stated herein above is true to the best of my knowledge, information and belief. Solemnly affirmed at Mumbai on this 28th day of January, 2025." 16. Considering the above averments made on oath by the petitioner, it is clear that both the Appellate Authority as well as the Revisional Authority have rightly come to the conclusion that when the documents were lost on or around 14.05.2011, the petitioner was having the same documents in its possession and in absence of any specific dates made avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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