O.N.G.C. vs Union of India

None for the petitioner. We have considered the pleadings. Heard the counsel for the respondent. The petitioner is aggrieved by an order of the Revisional authority i.e. the Joint Secretary, Central Government made on 22-6-1993, in exercise of its power under Section 16 of the Customs Act, 1962. By that impugned order the Revisional authority set aside the order of the Collector of Customs (Appeals) dated 27-7-1992. The facts are that the petitioner had imported some seamless steel casing pipes in 1986. It claimed drawback under Section 74 of the Customs Act, by way of export. The claim was premised on the shipping bill dated 13-4-1988. The shipment was allowed on 22-12-1988 and final shipment was done on 24-12-1988. Since, this was beyond two years the drawback was not allowed by the adjudicating authority under Section 74 including the mandatory period described in that provision. The Collector of Customs (Appeals) by order dated 22-7-1992 allowed the appeal of the petitioner, observing as follows:

"I have carefully considered the submissions made by the appellants in the context of the Order-in-Original passed by the Asst. Collector, Drawback. There is no denial of the fact that the subject consignment was entered for export on 30-11-1988 and the duty was paid on 9-12-1986. So, the claim drawback under Section 74 of the Customs Act, 1962 read with Section 50 ibid, is within the time limit of 2 years. The adjudicating authority did not discuss anything on this ground, which is against the principle of natural justice. The matter was also examined in the light of Notification No. 19-Cus., dated 6-2-1965, Board''s instruction letter F. No. 40/48/63-Cus. IV dated 10-12-1963 and a departmental letter F. No. S34M-115/91 DBK dated 9-9-1991, clarifying the determination of date of export for the purposes of granting drawback. But, the aforesaid notification and the instructions did not clarify anything regarding entering the goods for export for filing drawback claim as referred under Section 74 and under Section 50 of the Customs Act, 1962. The ground of rejection being expiry of two years the order is set aside, and the appeal is allowed. Asstt. Collector, Drawback may sanction drawback as per the Customs Act, 1962, and the Drawback Rules."

The petitioner''s grievance in these proceedings under Article 226 is that the Revisional authority placed undue emphasis upon the period of election of two years provided in Section 74 ibid, completely ignoring the proviso which enable the C.B.E. & C. to extend the period having regard to the circumstances of the case. In the pleadings it is urged that the petitioner had in fact sought for extension in terms of the proviso on 7-12-1988. It is argued that in terms of Section 74 read with Sections 16 and 50, the claim for drawback is within the period of two years from the date of presenting the shipping bill. It is contended by the petitioner that in the present case the shipping bill was presented on 13-11-1998. Secondly, the period of limitation could not have been so operated for claim of drawback. The respondents argue that the provision applicable in the circumstances of this case is Section 51. It is emphasized that Section 50 deals with the entry of goods for export, whereas, Section 51 speaks of clearance for exportation. Without this order, termed as a ''Let Export'' order, concerned party would not be permitted to export the goods so as to claim a drawback under Section 74.

As is evident, the entry of the goods in the present case was on 9-12-1986. The petitioner sought to export the goods through a shipping bill presented on 30-11-1988. However, the order under Section 51 permitting the re-export, which was essential in this case and could be made after verification and inspection of the documents (this is also clear from the reference of Section 51 under Section 74) was given on 22-12-1988, which is beyond two years from 9-12-1986. In view of this, this Court is of the opinion that the petitioners contentions are not substantial. The court notices that even though the petitioner asserts in this writ petition, that an application for extension of time was made under proviso to Section 74(1), nevertheless, no copy of such application has been filed; such assertion was not apparently made before the Revisional authority. In any case, there is no order extending the time beyond two years. In these circumstances, the Court finds no infirmity with the order of the Revisional authority. The writ petition is consequently dismissed.