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Judgment
The challenge in the writ petition is directed towards refusal to
grant drawback claim of Rs.36,10,796/- in respect of a shipping bill
bearing no. 5318141 dated July 12, 2006. Learned Advocate for the
petitioners submits that, the petitioner had exported prime mild steel
concast billets under two separate shipping bills both dated July 12,
2006 with a due drawback claim of Rs.36,10,796/- and Rs.19,98,616/-.
The shipping bills were filed electronically. Export order was issued on
July 19, 2006. The same was also taken electronically. The Electronic
Data Interchange System (EDI System) was introduced for the first time
at Kolkata Customs during that relevant point of time. He refers to Rule
13(5) of the Drawback Rules 1995 and submits that, by virtue of the notification dated July 13, 2006, the electronic shipping bill itself will be
treated as a claim for drawback. Consequently, the shipping bill dated
July 12, 2006 bearing no. 5318141 filed by the petitioner in the EDI
System will be treated as a drawback claim. He submits that, the
drawback claim in respect of other shipping bill bearing no. 5118142 of
the same date was allowed and credited in the account of the petitioner
no. 1. However, the drawback claim in respect of the shipping bill no.
5318141 was not credited. The petitioner had made representations
dated April 9, 2010, June 7, 2010 and September 3, 2010 before the
Assistant Commissioner of Customs, Drawback department. However,
the petitioner was informed that, the Customs authorities had raised
queries in the EDI System in respect of the shipping bill no. 5318141 for
the submission of ARE-1 and Bank Realization Certificate. The petitioner
was not aware of such queries as the petitioner did not have access to
the EDI System at that point of time. Upon coming to know of such fact,
the petitioner had filed a supplementary claim under cover of a letter
dated December 6, 2010. The authorities had afforded the petitioner a
hearing in respect of such supplementary claim. However, by the Order
dated December 30, 2011 the Assistant Commissioner of Customs,
Drawback department rejected the same on account of the same being
barred by time and as the application was improper. The petitioner has appealed therefrom under Section 128 of the Customs Act, 1962. The
appeal was allowed by the Order dated February 6, 2012. The drawback
claim was directed to be considered on merits. The revenue had
preferred a revision therefrom under Section 129DD of the Customs Act,
1962. Such revision was allowed by the Order dated June 14, 2013
disallowing the claim for duty drawback and upholding the order in
original.
Learned Advocate for the petitioner submits that, the petitioner was
not aware of the queries raised in the EDI System as the petitioner did
not have access thereto. Consequently, the queries went unattended.
The petitioner having received one claim on duty drawback out of the
two shipping bills of the same date, it did not have any reason to suspect
that, the other duty drawback would not be granted. However,
immediately upon the petitioner becoming aware of the problem it had
taken corrective measures, and had lodged a supplementary claim.
Consequently, the petitioner should be allowed to receive the benefits of
the duty drawback which is otherwise receivable.
Learned Advocate for the respondents submits that, the petitioner
is not entitled to the reliefs as prayed for herein. The duty of drawback
was rejected on EDI System due to the petitioner failing to give answer to the queries raised therein. The rejection of the claim by the EDI
System is not under challenge in the present writ petition. The so-called
supplementary claim lodged by the petitioner is barred by the laws of
limitation. Such supplementary claim cannot, therefore, be adjudicated
upon. The petitioner is guilty of delay and latches. The petitioner,
therefore, is not entitled to the duty drawback as claimed.
I have considered the rival contentions of the parties and the
materials made available on record.
The petitioner had exported prime mild steel concast billets by two
separate shipping bills bearing nos. 5318141 and 5318142 both dated
July 12, 2006. The dispute is in respect of shipping bill no. 5318141.
The petitioner being entitled to a duty drawback of Rs.36,10,796/- in
respect of the disputed bill had lodged its claim. The same has been
denied at the revisional stage. Hence, the writ petition.
It appears from the records made available to Court that, the
shipping bills were required to be filed electronically and that, the first
petitioner had done so. An export order was issued on July 9, 2006 also
electronically. The authorities had an electronic system of deciding on
the claim for duty drawback. It had introduced the EDI System. At the
relevant point of time, it was introduced for the first time, in Kolkata. The petitioners did not have access to such system. The claim for duty
drawback was assessed electronically and apparently the authorities
had raised query on December 19, 2006 for submission of ARE-1 and
BRC. A subsequent query was raised on March 23, 2007 requiring
submission of ARE-1, buyer''s order and BRC. These queries are not
substantiated to be served upon the petitioners. Since the petitioners did
not respond to such queries, the authorities had scrolled the subject
shipping bill as zero drawback on February 26, 2009 and sent it to
history on March 29, 2009. The respondents have not substantiated that
all these informations were known to the petitioners and that, despite
such knowledge, the petitioners did not take steps with regard thereto.
The petitioners claimed refund by a letter dated April 9, 2010 in respect
of both the shipping bills. Thereafter, the petitioner had filed a
supplementary claim in respect of the disputed shipping bill on June 6,
2010 and proceeded to submit documents on June 7, 2010, September
3, 2010 and December 6, 2010. The order in original had held that, the
lodgment of the supplementary claim would be dated December 6, 2010
and, therefore, such claim was barred in terms of Rule 15 of the
Customs, Central Excise Duties and Service Tax Drawback Rules, 1995.
Such order in original dated December 30, 2011 was reversed on appeal
by the Order dated February 6, 2012. The appellate authority had found that, since the petitioners were not informed of the queries raised
electronically, therefore, the question of commencement of the period of
limitation from the date of the queries should not arise. The date of
limitation would arise from the date of knowledge of the rejection of the
claim, if there be any. On revision, the order under appeal was set aside
and the order in original was restored.
As noted above, the claim for two duty drawbacks were lodged in
respect of shipping bills of the same date. The claims were adjudicated
upon electronically. It is an admitted fact that, apart from the data being
available electronically, the department did not serve any notice or any
information to the petitioners in hard form. The respondents have also
failed to substantiate that the petitioners had access to the electronic
data at that material point of time and, therefore, were aware of the
queries made.
The petitioners, however, lodged a supplementary claim
immediately upon coming to know of the decision of the authorities to
scroll the subject shipping bill as zero drawback and sent it to history.
Such conduct also establishes that, the authorities have not adjudicated
upon the merits of the claim for duty drawback. In such circumstances,
it would be appropriate to accept the reasoning and finding of the appellate authority, set aside the impugned order passed on revision and
request the authorities to adjudicate upon the claim for duty drawback,
in accordance with law, by treating the claim to be made within the
period of limitation.