2015 (11) TMI 1642 - CGOVT - Customs

Customs Notification Time Limits Not Retroactive: Brand Rate Fixation Application Rejected

The Government held that the amended time limits in Notification No. 49/2010-Cus. (N.T.) did not apply retrospectively to the respondent's case. The ... Condonation of delay - Duty Drawback - brand rate fixation - Rule 6 of the Customs & Central Excise Duty Drawback Rules, 1995 - the claim of drawback under brand rate to be fixed was filed on 91st day from Let Export Order - whether the delay condonable? - N/N. 49/2010-Cus. (N.T.), dated 17-6-2010 - Held that: - As per the provisions of Rule 6(1) of the Customs & Central Excise Duty Drawback Rules, 1995, the application for determination of rate of drawback is required to be filed within 60 days for the date relevant. In the instant case, Government finds that the date of first shipping bill is 1-4-2010 thus the period of 60 days for made relevant expires on 30-5-2010 for the purpose of Rule 6 & 7 ibid. Further the proviso to said Rule 6(1) provides that Commissioner may if he is satisfied that the manufacturer or exporter was prevented by sufficient cause from filing the application within the aforesaid time, allow an extra time of 30 days. But the respondent could not furnish valid reason to the satisfaction of the Commissioner for the delay which prevented them from filing application within 60 days as stipulated. N/N. 49/2010-Customs (N.T.), dated 17-6-2010 and the Circular No. 13/2010-Cus. came into effect only from 17-6-2010 and 24-6-2010, whereas the impugned export was for the month of April, 2010. As such, the time limit for filing application for fixation of Brand Rate of Drawback which came into effect only form 24-6-2010 cannot be extended to export of April, 2010. Brand rate fixation rightly rejected as time-barred - revision application allowed. Issues Involved:1. Provisional fixation of brand rate of drawback.2. Timeliness of the application for drawback.3. Condonation of delay in filing the application.4. Applicability of amended rules and notifications.5. Review and appeal process.Detailed Analysis:1. Provisional Fixation of Brand Rate of DrawbackThe respondent, M/s. Indian Oil Corporation Ltd., Barauni, filed an application for provisional fixation of the brand rate of drawback under Rule 6 of the Customs & Central Excise Duty Drawback Rules, 1995, for April 2010. The application was initially deemed non-maintainable due to improper format, lack of required declaration, and untimeliness.2. Timeliness of the Application for DrawbackThe application was received beyond the prescribed 60 days from the Let Export Order, which was the deadline under the Customs & Central Excise Duty Drawback Rules, 1995, applicable at the time. The revised application was also submitted late, on the 91st day. The respondent argued that the delay was due to logistics and operational constraints, including the collection of bills of export from multiple locations.3. Condonation of Delay in Filing the ApplicationThe respondent requested condonation of delay, citing practical difficulties and previous instances where such delays had been condoned. However, the Commissioner, Central Excise, Patna, did not find sufficient cause to grant condonation. Consequently, a Show Cause Notice was issued, and the Joint Commissioner rejected the application as time-barred.4. Applicability of Amended Rules and NotificationsThe respondent relied on Notification No. 49/2010-Cus. (N.T.), dated 17-6-2010, which extended the time limit for filing brand rate applications to 90 days. The Commissioner (Appeals) set aside the original order based on this notification. However, the Government noted that the notification and related Circular No. 13/2010-Cus., dated 24-6-2010, were not applicable retrospectively to exports made in April 2010. The principle established by the Hon'ble Supreme Court in ITC (Ltd.) v. CCE and Paper Products Ltd. v. CC mandates strict adherence to the wording of statutory provisions.5. Review and Appeal ProcessThe Department reviewed the order of the Commissioner (Appeals) and directed the filing of a Revision Application. The Government condoned the delay in filing the Revision Application, recognizing the time spent in prosecuting the case before the CESTAT, which lacked jurisdiction. The Government ultimately found that the Commissioner (Appeals) erred in applying the new provisions retrospectively and upheld the Order-in-Original, rejecting the application for brand rate fixation as time-barred.Conclusion:The Government concluded that the amended time limits introduced by Notification No. 49/2010-Cus. (N.T.) could not be applied retrospectively to the respondent's case. The application for brand rate fixation for April 2010 was rightly rejected as time-barred by the Joint Commissioner. The revision application by the Department was allowed, and the order of the Commissioner (Appeals) was set aside.