TMI Blog2003 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the said officer left the services of the first Petitioner-Company on 31st December, 1989. The Petitioners prime concern at that, relevant time was to execute the export order and as the orders placed were voluminous and heavy, so much so that no airline was willing to export the transportation of the entire consignment in one lot. The orders consisted of several systems of configerative, peripherals, spares, consumables, softwares, etc. and were required for the net working of a single area of operation and that constituted one composite unit for the first phase of the buyers automation programme and despite the fact that the buyers wanted the entire consignment in one lot, none of the airline was willing to transport the same in one lot, as the entire lot was voluminous and heavy. Therefore, the Petitioners were forced to despatch the goods in four lots under four different shipping bills, the same were followed by two more consignments of exports. 4.The grievance of the Petitioners is that even though the applications claiming the refund as drawbacks were filed beyond the period of thirty days, the Petitioners had disclosed sufficient cause for not filing the said ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16th December, 1989. Third Respondent by a letter dated 22nd March, 1990 informed the Petitioners that the application dated 3rd March, 1990 was in respect of the shipping bill dated 21st October, 1989 and the same had been received by the Respondents' office on 15th March, 1990 and, therefore, there was delay of 115 days and hence it was rejected as time-barred. 7.On 30th March, 1990 and 5th April, 1990, the Petitioners by their letters submitted two drawback applications in respect of three shipping bills dated 16th December, 1989, 26th December, 1989 and 6th February, 1990. By a letter dated 19th April, 1990 the Petitioners sought to point out the reasons for the delay in submitting the applications to be lack of experience and expertise in the field of export and post-export formalities and prayed for condonation of delay. By a letter dated 15th May, 1990 the Petitioners sought to explain the above facts to the Member (Customs) of the Central Board of Excise and Customs and requested for condonation of delay in submitting the applications. In reply thereto, the Respondents under letter dated 13-6-1990 informed the Petitioners that in terms of letter of the Ministry date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of thirty days has to be counted from the date of the export of goods. In case of failure to file such an application within thirty days, further period of thirty days is made available under the proviso to Clause (a) of the sub-rule (1) of Rule 6, subject to the condition that the Applicant shall satisfy the authorities that he was prevented from sufficient cause to file the application within the initial period of thirty days. On such satisfaction of the authorities, the delay can certainly be condoned provided the applicant files such application within the said grace period of thirty days. The said Rule 6(1)(a) of the said Rules reads thus :- Cases where amount or rate of drawback"6. has not been determined :- (1)(a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer or exporter of such goods may, within thirty days from the date of export of such goods apply in writing to the Central Government for the determination of the amount or rate of drawback therefor, stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose applications to the Respondents nevertheless, however, it is not in dispute that those were also filed beyond 60 days. The same is revealed from the following chart :- Sr. No Date of Export Date of Application Date of Submission Delay 1. 21-10-1989 3-3-1990 15-3-1990 115 2. 21-10-1989 3-3-1990 15-3-1990 115 3. 29-11-1989 10-3-1990 30-4-1990 81 4. 12-1-1990 10-3-1990 30-4-1990 78 5. 16-12-1989 30-3-1990 19-4-1990 73 6. 26-12-1989 5-4-1990 19-4-1990 70 7. 6-2-1990 5-4-1990 19-4-1990 42 13.Undoubtedly, the Petitioners have claimed to have submitted their applications dated 10-3-1998 on 21-3-1990, application dated 30-3-1990 on 5-4-1990 and one dated 5-4-1990 on 8-4-1990. However, no material in support thereof has been placed on record nor even a statement on oath by the Petitioners is to be found on record in that regard. In other words, there is no dispute that all the applications were filed beyond the period of sixty days from the date of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same time, Rule 15 clearly reveals that on failure to comply with the provisions of the said Rules, the applicant would be disentitled to claim the refund, unless relaxation is granted under the said provision. All these provisions of law in the said Rules apparently reveal that the provisions relating to the procedure for claim of refund in the nature of drawback provided under the said Rules are required to be complied with necessary precision, failing which the applicant may loose claim for drawback. 16.It is well settled that the statutory bodies cannot travel beyond the scope of power delegated to them under the statute under which they are created or authorised to act. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. (vide : Sharif-ud-Din v. Abdul Gani Lone reported in AIR 1980 SC 303). A requirement of a particular form or manner of performance of an act is to be held as mandatory if the statutory provisions prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s namely the application dated 15th May, 1990 there was reference to Rule 16. Perhaps the Petitioner wanted to refer to Rule 15 and might be that either by oversight or on account of typing mistake, it was mentioned as Rule 16 instead of Rule 15. Nonetheless, the fact remains that the said application was also for condonation of delay. The question of condonation of delay can arise for the purpose of entertaining the application for refund in the nature of drawback, if the applicant has a subsisting right to claim such refund. But when such right ceases to exists on account of failure to comply with the provisions of law, there cannot be condonation of delay but it is only by way of relaxation from the applicability of the provisions of the said Rules, that could revive the entitlement for refund in the nature of drawback. 21.It is to be noted that even the application dated 27th August, 1991 does not satisfy the requirement of Rule 15. In fact, the said application was essentially with the request for condonation of delay. It was the contention of the Petitioners in para 6 thereof that the application was filed within one month from the letter dated 14th February, 1990 of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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