K.K.S. Kader Mohideen Sahib and Sons vs Joint Secretary, M.F. (D.R.)

The prayer in the writ petition is for issue of a writ of certio-rarified mandamus calling for the records of the first respondent culminating in its

Order Nos. 143-157/97 to the Government of India dated 12-2-1997, quash the same and direct the respondents to allow the claim for

drawback of Rs. 6,50,238/-

The petitioner firm was the manufacturers and exporters of finished leathers such as, lining leather, swedes leather and burnish leather. In the

year 1993, the petitioner firm exported finished leather to foreign countries. In terms of the notification of the Customs Department, the petitioner

firm was entitled to drawback and therefore, it filed 15 drawback claims. These claims were rejected by the third respondent. More than 200 such

appeals were filed in respect of drawback for export of finished leather. The appellate authority under the drawback system remanded one set of

appeals for fresh consideration and in another set of appeals, confirmed the order of the original authority. Aggrieved by the above order of the

appellate authority made in Appeal Nos. M/CUS/702-745/95, dated 28-7-95, the other exporters filed revision petitions before the first

respondent. The provisional authority remanded the entire matter for fresh consideration. Thereafter, the original authority allowed the drawback.

However, the petitioner firm could not prefer appeals as against the rejection of its drawback claims on the bona fide impression that it ought to

have been also included in the 200 appeals filed by different firms collectively. However, when on equity from the Customs Department, the

petitioner was given to understand that in the absence of any order either by the appellate authority or by the revisional authority for remanding the

matter, the drawback claims could not be considered. Hence, the petitioner was constrained to file appeals with a petition for condonation of

delay. The said appeals were rejected on the ground that the appellate authority has no power to condone the delay for more than 30 days.

Aggrieved by the common order of the appellate authority made on 20-8-96, the petitioner preferred revision applications before the 1st

respondent and the same was also rejected on the ground that the appellate authority had rightly rejected the appeal on the ground of time bar. tt is

against this order, the present writ petition has been filed.

Mr. R. Sashidharan, learned Counsel for the petitioner submitted that when the appeals as against the rejection of drawback claims were made

collectively, the petitioner was under the bona fide impression that as against the rejection or drawback claims in respect of the petitioner firm also,

appeals would have been preferred. Only when the petitioner came to know that the appeals were not preferred, the petitioner filed appeals with a

petition for condonation of delay. The learned Counsel submitted that this court while exercising jurisdiction under Article 226 of the Constitution

of India has ample power to condone the delay, in the event this Court is satisfied over the reason given by the petitioner for not preferring the

appeals in time. Hence, the learned Counsel submitted that in view of the reasons adduced for not preferring the appeals, the delay may be

condoned and the matter may be remitted back to the appellate authority for fresh consideration.

Heard the learned Additional Central Government Standing Counsel for the respondents also.

A Division Bench of this Court in the judgment reported in ""Vol. Maheswari Fireworks Industries Vs. Commercial Tax Officer and Others,

while considering the power of this Court to condone the delay in respect of appeals or revisions pending before the quasi-judicial authorities has

held that the limitation applicable to the appellate authority cannot be made applicable to this Court while exercising jurisdiction under Article 226

of the Constitution of India. In view of the said order, it is to be now considered as to whether there is any justification to condone the delay in

preferring the appeals. According to the petitioner, as against the order of rejection of the drawback claims along with the petitioner firm, there

were more than 200 claims in respect of export of finished leather and appeals were preferred. The petitioner was on the bonafide impression that

its appeals against the rejection of drawback claims covered in this writ petition would have been also filed. It is also to be noted that as against the

two sets of appeals, the appellate authority in Appeal Nos. 953 to 1121 of 1993 remanded the appeals for fresh consideration to the original

authority. In so far as the other set of appeals, the appellate authority confirmed the order of the original authority. Aggrieved, by those orders,

revision petitions had been filed which were allowed and remanded back to the original authority and the original authority allowed the drawback

claims. When on the same set of facts similarly placed exporters were allowed drawback claims, merely because there was a delay on the part of

the petitioner in not preferring the appeals, the petitioner cannot be deprived of its legitimate claims for drawback claims. The reason advanced by

the petitioner in not preferring the appeals as referred to above is convincing. Therefore, in the interest of justice, the delay in preferring the appeals

filed by the petitioner should be condoned and accordingly, the delay is condoned and the writ petition is allowed. The second respondent is

directed to entertain the appeals, consider the same and pass orders on merits with regard to the drawback claims filed by the petitioner. No costs.