TaxTMI 
TaxTMI 
2011 (12) TMI 204
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....e respondent issued a show cause notice dated 8.9.2004 on the ground that the payment of Rs.18,74,035/- was erroneous as drawback or refund of duty was filed after six months 22 days, which was beyond period of three months and the extendable period of another three months, allowed under Rules 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995, (the Rules, for short). 6. The petitioner protested and filed objections. 7. By order dated 1.11.2004 the Assistant Commissioner, Customs held that the claim for refund was beyond six months and the authorities concerned did not have the power to condone the delay of 22 days. Accordingly, he confirmed the demand of Rs.18,74,035/-, as the drawback amount had been erroneously paid. The said demand was recoverable under Rule 7 of the Rules read with Section 28 of the Act. In this order, the Assistant Commissioner of Customs also referred to Rule 7A which empowers the Central Government to condone the delay beyond six months. The relevant portion of the said order reads as under: "The party claimed in the defence that benefit of Rule 7A of the Re-export of Imported Goods (Drawback of Customs Dut....
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....ly because I find no legal or procedural infirmity in the impugned order in original." 9. The petitioner, on 21.12.2004, filed an application with the Central Government for condonation of delay. The said application has been placed on record as Annexure 9. 10. The application records the entire history of the case and states that there was a lapse on their part as the application for refund or duty drawback was made after a period of six months. The fact that the petitioner had sought condonation of delay in the original application dated 11.03.2004 was also stated. In addition to the aforesaid facts, the petitioner had pleaded that they had faced both administrative and family problems due to long illness and then unfortunate death of their father on 29.1.2004. Death certificate was enclosed. Accordingly, the following prayer was made in the application. "4.5. We submit that the reasons for delay as tendered in our application dated 15.03.200 and 27.03.2004 and as amplified in response to the show cause notice and narrated in sub-paras 4.1 and 4.2 supra may also be considered for delay of 22 days beyond the extended period of three months provided under pr....
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....st recoverable under Rule 7 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 read with Section 28 of the Customs Act 1962, was confirmed and this office letter of C No. VIII/6/ICD/PPG/SCN/947/04 dated 22.03.2005. 2. You are directed to make the payment of drawback amount erroneously paid along with interest applicable in compliance to said order within 7 days of the receipt of this letter, failing which action as deemed fit under the law would be taken to recover the outstanding dues. In this regard this is also to inform you that as intimated to this office by Dy. Secretary (Drawback), CBEC, Department of Revenue, Ministry of finance, Government of India, your request for condonation of delay under rule 7A of the Re-export of imported Goods (Drawback of Customs Duties) Rules, 1995 has not been considered by the Central Government." (emphasis supplied) 14. The aforesaid letter merely records that the request made by the petitioner for condonation of delay under Rule 7A of the Rules has not been considered by the Central Government. It does not even state that the request has been rejected. Reasons for rejection of request have not ....
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.... are ordinarily stored together in bulk, may be established; (b) specify the goods which shall be deemed to be not capable of being easily identified; and (c) provide for the manner and the time within which a claim for payment of drawback is to be filed. (4) For the purposes of this section- (a) goods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under section 16; (b) in the case of goods assessed to duty provisionally under section 18, the date of payment of the provisional duty shall be deemed to be the date of payment of duty." 17. There is no dispute or doubt that the said Section is applicable and the petitioner satisfies the conditions/stipulations mentioned in the said provision. The said Section permits that on re-export of imported goods, the exporter, who had paid the duty on the imported goods, is entitled to refund of 98% of the duty paid at the time of import. It is not alleged that there is dispute about the identity of the goods, which were imported and which were subsequently exported. The only claim and the defence raised by the respondent is that t....
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....ule (1). (5) Where any order for payment of drawback is made by the Commissioner (Appeals), Central Government or any Court against an order of the proper officer of customs, the manufacturer exporter may file a claim in the manner prescribed in this rule within three months from the date of receipt of the order so passed by the Commissioner (Appeals) Central Government or the Court, as the case may be. 7A. Power to relax. - If the Central Government is satisfied that in relation to the export of any goods, the exporter or his authorised agent has, for reasons beyond his control, failed to comply with any of the provisions of these rules, and has thus been entitled to drawback, it may, after considering the representation, if any, made by such exporter or agent, and for reasons to be recorded in writing, exempt such exporter or agent from the provisions of such rule and allow drawback in respect of such goods." 19. Rule 5 stipulates that a claim for drawback be filed within three months from the date on which an order permitting clearance and loading of goods for exportation under Section 51 is made. Assistant Commissioner of Customs or Deputy Commissioner o....