Gujarat High Court
M/S Gill And Co. Pvt. Ltd vs Union Of India on 30 January, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/16462/2022 ORDER DATED: 30/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16462 of 2022
===============================================================
M/S GILL AND CO. PVT. LTD.
Versus
UNION OF INDIA & ORS.
===============================================================
Appearance:
MR HARDIK P MODH(5344) for the Petitioner(s) No. 1
MR CB GUPTA(1685) for the Respondent(s) No. 1,2,3
===============================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 30/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr.Hardik P. Modh for the petitioner and learned advocate Mr.C.B.Gupta for the respondents.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"(a) That this Hon'ble Court maybe pleased to issue a Writ of Certiorari Page 1 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined or Writ of mandamus or any other similar Writ or Order calling for the records and documents from the Office of the Respondents, culminated in the Order dated 31.08.2020 passed by the Second Respondent and after examining the legality thereof, quash and set aside the impugned Order dated 31.08.2020 passed by the second Respondent (Annexure F);
(b) Pending the hearing and final disposal of the Petition, the Respondents, their subordinates or agents may be restrained by an Order of injunction of this Hon'ble Court from anyway initiating any recovery of the amount of Drawback from the Petitioner."
3. The brief facts of the case are as under :
3.1. The petitioner was engaged in the business of trading of various items and in the course of their business, exported ten Page 2 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined consignments of 'Indian Raw Cotton' to China under ten different shipping bills during the period from May, 2005 to November, 2006.
3.2. It is the case of the petitioner that on the export made by the petitioner during the aforesaid period, the petitioner was eligible for 1% of the FOB value of the export consignment with duty drawback totaling to Rs.11,79,528/- in terms of the Draw Back Schedule No.5201 Rules, 1995 (for short 'the Rules, 1995') and for sanction of the drawback, the triplicate copy of the respective shipping bills were required to be deemed as a claim for drawback and such triplicate copy shall be retained by the proper Officer in terms of Rule 13 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995.Page 3 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 3.3. It is the case of the petitioner that in respect of the above exports, the claim of the drawback was left pending with no action taken by the respondents. The petitioner therefore took up the matter with the Assistant Commissioner of Customs, Mundra in the year 2011. The petitioner was directed to produce certain documents in respect of the exported consignments, however, several documents were lost by the employee of the petitioner and the Certificate issued by the Railway Police, Chatrapati Shivaji Terminus was produced by the petitioner for loss of the relevant documents by the employer of the petitioner and produced the documents which were available with the petitioner along with an Indemnity Bond.
Page 4 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 3.4. The Assistant Commissioner of Customs, Mundra by order dated 29.06.2012 sanctioned the drawback claim of the petitioner. 3.5. The respondent No.3-Deputy Commissioner of Customs, Mundra challenged the order dated 29.06.2012 before the Commissioner Customs (Appeals), Kandla under Section 129D(2) of the Customs Act, 1962. 3.6. The Commissioner of Customs, Kandla by order dated 26.08.2013 allowed the Appeal filed by the respondent No.4 and set aside the sanction of the drawback claim of the petitioner on the ground that the drawback claim was filed only on 14.05.2011 and there was a delay of five and half years in filing the claim of drawback.
Page 5 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 3.7. Being aggrieved by the Order-in-Appeal dated 26.08.2013 passed by the Commissioner of Customs (Appeals), the petitioner preferred Revision Application before the respondent No.2-The Principal Commissioner, Ex-fficio Additional Secretary to the Government of India.
3.8. The respondent No.2 by the impugned order dated 31.08.2020 disposed of the Revision Application placing reliance upon a Public Notice No.336/2001 dated 10.12.2001 and Standing Order No.3/2009 dated 04.02.2009 holding that the request for reconstruction of the documents beyond five years cannot be accepted and onus of filing triplicate copy of shipping bill was on the petitioner and denied the drawback claim of the petitioner confirming the order passed by the Page 6 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Commissioner of Customs (Appeals). 4.1. Learned advocate Mr.Hardik Modh for the petitioner submitted that both the Commissioner of Customs (Appeals) as well as the Revisional Authority have ignored the Rule 13 of the Rules, 1995 which is unambiguous and clearly stipulates that the triplicate copy of the shipping bill shall be deemed to be the claim for drawback and therefore, there was no question of filing belated claim or time barred claim by the petitioner and it was incumbent upon the respondent No.3 to sanction the refund claim as the Rules do not provide a manner in which claim of drawback has to be filed by the exporter and there is no procedure to file a separate claim in any other manner. It was therefore submitted that the respondent No.3 has rightly sanctioned the Page 7 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined claim by order dated 29.06.2012 considering the Police Report filed by the petitioner along with an Indemnity Bond and other relevant documents which were available with the petitioner at the relevant point of time. 4.2. It was further submitted that the onus to retain the triplicate copy of the shipping bill and sanction of the drawback claim is on the proper Officer and therefore, the respondent Nos.2 and 3 could not have rejected the claim on the ground of limitation. 4.3. It was submitted that the petitioner was not responsible for any delay in sanction of the drawback claim as it was failure on the part of the respondent No.3-Adjudicating Authority to act in compliance of the provisions of the Rules, 1995. Page 8 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 4.4. It was submitted that the order passed by the Commissioner of Customs (Appeals) and confirmed by the Revisional Authority are contrary to the Rules, 1995 inasmuch as the petitioner was not at all responsible for making a belated claim and it was incumbent upon the respondent-Authority to sanction the claim by considering the triplicate copy of the shipping bill which was supposed to be retained by the proper Officer. It was therefore submitted that as the petitioner was not responsible for having the original of the triplicate copy of the shipping bill, the order dated 29.06.2012 passed by the respondent No.3 is required to be restored and the claim made by the petitioner in the year 2011 could not have been rejected by the respondent Nos.2 and 3 on the ground of Page 9 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined limitation.
4.5. Learned advocate Mr.Hardik Modh referred to and relied upon the Additional Affidavit filed on behalf of the petitioner pursuant to the order dated 16.01.2025 granting time to the petitioner to explain the period from 2005 to 2011 for not taking any action for claim of the drawback on the ground that the original documents were lost and submitted that as per the say of the authorised person of the petitioner, the person handling the work relating to exports and follow up on drawback, left the employment in the year 2006 and the petitioner-Company was under impression that the claims of the duty drawback for all their eligible exports were processed and allowed for the export made prior to 2006.
Page 10 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 4.6. It was further stated in the Affidavit that in the year 2011, the petitioner during the internal examination and weeding out of the documents, realised that the duty drawback claim was not received for the exports made in the year 2005-06. The petitioner therefore on realising that the claim for drawback was pending, instructed its Peon, one Mr.Sudhakar Pagare, to collect the connected documents from the warehouse of the petitioner located at Mumbai but while coming from the warehouse to CST, Mumbai by train, the said documents were lost in transit for which the FIR was registered by the petitioner. 4.7. Learned advocate Mr.Hardik Modh referring to the above contents of the aforesaid affidavit dated 28th January, 2025 Page 11 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined submitted that in view of the facts stated on oath by the petitioner, the bonafide claim of the petitioner should not be rejected as the petitioner could not take any follow up action for the claim which otherwise ought to have been sanctioned by the respondent-Authority in the year 2006 itself after the export obligations were completed by the petitioner in accordance with the Rules.
4.8. It was further submitted that there is no dispute with regard to the drawback claim of the petitioner and Commissioner (Appeals) as well as the Revisional Authority have mis- interpreted Rule 13 of the Rules, 1995 by shifting the burden on the petitioner for making the refund claim by producing the original triplicate copy of the shipping bill, however, the original copy of the shipping Page 12 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined bill was to be retained by the proper Officer and to be transferred for processing of the claim and the petitioner was not at all concerned for producing the original triplicate copy of the shipping bill and therefore, it was submitted that the respondent-Authorities have not taken any action and the petitioner therefore should not suffer on account of such negligence and inaction on part of the respondents and claim could not have been rejected on ground of limitation attributing the same to the petitioner without considering the negligence and lethargy for not sanctioning the drawback claim of the petitioner for the export made for the period 2005-06.
4.9. In support of his submissions, reliance was placed on the decision in case of Page 13 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined New Pensla Industries Versus Union of India reported in 2017 (354) ELT 231 (Guj) wherein, this Court directed the Department to process the claim and release the drawback amount with interest in case it was found that the claim for drawback was deficient than it was required to be returned together with the deficiency memo calling upon the party to remove such deficiency. It was therefore submitted that in the facts of the case, no deficiency memo was issued by the respondent No.3 at any point of time so as to enable the petitioner at the relevant time to cure the defects of furnishing the triplicate copy of the shipping bill.
4.10. Reliance was also placed on the decision in case of the Commissioner of Central Excise and Customs, Surat-I versus Page 14 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Swagat Synthetics reported in 2008 (238) E.L.T. 413 (Gujarat) wherein, it was held that the provision of Section 11B of the Central Excise Act, 1944 can have no play and cannot be applied when the appellant in the facts of the said case was entitled to the the refund as per Sub-rule (13) of Rule 57F of the Central Excise Rules and the Notification issued thereunder dated 03.09.1996 which provides that where for any reason adjustment of the deemed credit is not possible, a manufacturer shall be allowed refund of such amount of deemed credit subject to the safeguards, conditions and limitations as may be specified by the Central Government vide Notification in the Official Gazette. It was therefore held in the said case that the respondent-Assessee was seeking refund of un- utilised deemed credit, provision of Section Page 15 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 11B of the Central Excise Act, 1944 which have been relied upon by the Revenue can have no play and cannot be applied. It was therefore submitted that in the facts of the case when the claim of the petitioner for drawback was required to be sanctioned on the basis of the filing of the shipping bills in pursuance to Rule 13 of the Rules, 1995, the respondent- Authority could not have rejected the same on the ground of limitation attributing such delay on part of the petitioner. 4.11. Reliance was also placed on the order passed by the Revisional Authority in case of Sarda Energy and Mineral Limited wherein, upholding the order passed by the Commissioner (Appeals), the Revisional Authority held that once the assessee satisfies the provisions of Rule 13 of the Rules, 1995 as the date on Page 16 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined which the Customs Officer makes an order permitting the clearance and loading of the goods for exportation, itself is a claim of drawback and Rule 13 of the Rules, 1995 does not prescribe any time limit for filing of the drawback claim as contended by the Department. It was therefore submitted that the impugned order passed by the respondent-Authority is contradictory to what is held in the said case. It was therefore submitted that when there is no time limit for filing drawback claim as prescribed under Rule 13 of the drawback rules of the Rules, 1995, the legitimate drawback claim of the petitioner could not have been denied on ground of limitation.
5.1. On the other hand, learned advocate Mr.C.B.Gupta for the respondents submitted Page 17 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined that there is no explanation given by the petitioner for remaining silent and inactive from 2006 to 2011 for the claim of the drawback. It was submitted that the explanation given by the petitioner for the delay caused in making the claim after more than five and half years is nothing but an eyewash so as to get the drawback claim to over come the delay and laches on part of the petitioner.
5.2. It was therefore submitted that both the Commissioner (Appeals) and the Revisional Authority have rightly rejected the drawback claim of the petitioner in consonance with Rule 13 of the Rules, 1995 which provides that the claim for drawback should be accompanied by the documents enumerated in the said Rules and if the claim is incomplete in any material Page 18 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined particulars or is without the documents specified in Sub-rule (2) of Rule 13, of the Rules, 1995, such claim is required to be returned to the claimant with a deficiency memo and the exporter is required to submit a claim for drawback after complying with the requirements specified in the deficiency memo. It was submitted that in the facts of the case, the petitioner failed to provide the triplicate copy of the shipping bill and in spite of that, the respondent No.3 considering the FIR filed by the petitioner on 14.05.2011 showing the details of the lost documents and ignored the mandatory requirement of the triplicate copy of the shipping bill for sanction of the drawback claim. It was further submitted that the delay of five and half years for making the drawback claim was never explained by the petitioner and therefore, the Page 19 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined petitioner was not entitled to the drawback claim as held in the concurrent findings arrived at by the Commissioner (Appeals) as well as the Revisional Authority. In support of his submissions, reliance was placed on the following averments made in the Affidavit-in- Reply filed on behalf of the respondent Nos.2 and 3:
"13. That, contentions and averments made at Ground (C) to (E) of the Petition are not true and denied. In the Order-in-Appeal (ANNEXURE-D), the Appellate Authority has examined various aspects. It has been observed that the adjudicating authority had considered the Triplicate copy of Shipping Bill as the Drawback claim, but his order was silent on remaining aspects of Rule 13 viz. whether such drawback claim (Triplicate copy of Shipping Bill) had been retained by the proper officer who made order under Page 20 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined section 51 and if so, whether the same was available on records and verified by the adjudicating authority before sanctioning drawback, especially since the exporter claimed to have lost all original documents pertaining to exports; whether such drawback claim was accompanied with the documents specified at sub-rule 2(i) to (v); whether any deficiency memo was issued to the exporter in terms of sub-rule 3(a) and if so, whether they had filed proper compliance in this regard; Adjudicating authority had not examined as to whether it could be a case where the exporter could not have furnished all documents or information or could not have complied with the deficiency memo during the relevant period and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It has been observed that the order (Order-in-Original) does not discuss as to how the adjudicating authority had verified the facts relating to second proviso of section Page 21 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 75 which stipulates that if the sales proceeds are not received within the time allowed under FEMA, 1999, drawback would not be admissible; that had the date of fling the claim was considered as 14.5.2011 when they actually made their claim before the adjudicating authority, the same would have been hit by the law of limitation; that none of the case laws cited in the impugned order (Order-in-Original) pertain to situations where the claimant failed to furnish the entire set of original documents while claiming drawback on exported goods. In the Order of the Respondent No. 2 (Principal Commissioner RA and Ex-Officio Additional Secretary to the Government of India), various issues raised by the Petitioner herein have been thoroughly discussed and analysed. Therefore, the Appellate Authority and Respondent No. 2 have not denied the drawback only on account of not filing the claim within time. Even in the appeal filed before the Commissioner (Appeals) (ANNEXURE-C Page 22 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined of the Petition) the department had challenged the Order-in-Original (ANNEXURE-B of the Petition) on various ground. Therefore, the submission in the Petition that the appeal filed by Deputy Commissioner also does not raise any objection on the sanction of the drawback to the petitioners but for the purported delay, is not true and denied. While asserting the failure of the proper officer to retain the Triplicate copy of the Shipping Bills, the Petition is conspicuously silent how original Triplicate copies of Shipping Bills came in possession of the Petitioner who held them till 12.05.2011 when they were lost.
14. That, contentions and averments made at Ground (F) and (G) of the Petition are not true and denied. One of the grounds raised by the department in the appeal against the Order-in- Original was that the exporter (Petitioner) had not submitted any of the original documents viz. Triplicate Page 23 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined copy and Export Promotion copy of Shipping Bill, Invoice, Packing List, Bill of Lading, Bank Realisation Certificate, Mate Receipt. In the Order dated 31.08.2020, Respondent No. 2 has observed that Shipping Bills filed manually, unlike those filed in the EDI system, can be manipulated with ease; that as per the provisions of Rule 13 of the Drawback Rules, 1995, Triplicate copy of Shipping Bills filed for export goods should be deemed to be a claim for drawback filed on the date of permitted exports, the triplicate copy of the shipping bills is the only valid document for sanction of drawback. In this context, Respondent No. 2 has observed that in case where such document is not available or misplaced, Public Notices / Standing Orders issued by the Department for reconstruction of lost documents for sanction of drawback would have been available to the applicant. In the standing Order No. 03/2009 dated 04.02.2009 of the Commissioner of Customs (Export), Page 24 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Jawaharlal Nehru Custom House, Nhava Sheva, Distt. Raigad, prescribing procedure for reconstruction of Shipping Bill, it has been mentioned that the procedure is devised basically to ensure that there is no double use of the Shipping Bills.
15. That, contentions and averments made at Ground (H) of the Petition are not true and denied. While contending that even if the drawback claim of Kandla Customs were to be sanctioned by officer of Customs at Bhuj at relevant time, it was the responsibility of the officer to follow the law and forward the copy to the proper officer after retaining the same and the Petitioner cannot be held liable in any manner whatsoever for the said lapse on the part of the officer, Petition is silent how original Triplicate copies of Shipping Bills came in possession of the Petitioner who held them till 12.05.2011 when they were lost."Page 25 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 5.3. Referring to the above averments, it was submitted that the petitioner is not entitled to the drawback claim, more particularly, in view of the Standing Order No.3/2009 dated 04.02.2009 prescribing procedure for reconstruction of the shipping bill which clearly provides that the reconstruction cannot be done after five years.
5.4. Learned advocate Mr.C.B.Gupta also referred to and relied upon the Additional Affidavit filed by the respondents pursuant to the order dated 26.09.2024 passed by this Court whereby, the respondents were directed for production of original record for perusal of the Court. It was submitted that in spite of the best efforts made by the respondent to trace out the original records of the case and Page 26 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined produce before the Court, the same could not be done as the original record was not available in the Office of the Commissioner of Customs (Appeals) as well as the Additional Commissioner (RRA) Customs House, Kandla. 5.5. Learned advocate Mr.C.B.Gupta also referred to and relied upon the visit report dated 14.11.2024 of the Inspector (Drawback) Customs House, Mundra wherein, it is stated that after putting all efforts, they were not able to find original file bearing File No.VIII/34-2143/DBK/MP&SEZ/11-12 in respect of the petitioner and review file related to the Appeal.
5.6. It was therefore submitted that the respondent-Authorities have made their efforts to trace out the original file but as the same Page 27 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined is hold for more than ten years, could not be traced out. It was submitted that if the petitioner have preferred the drawback claim within a stipulated time, the benefit of Standing Order No.3/2009 could have been granted, however, in the facts of the case, no interference may be called for while exercising the extra-ordinary jurisdiction under Article 226 of the Constitution of India.
6. Having heard the learned advocates for the respective parties and considering the facts of the case as well as the material placed on record, it would be germane to refer to the relevant provisions of the Customs Act, 1962 and the Rules, 1995.
6.1. Section 51 of the Customs Act, 1962 Page 28 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined provides for Clearance of the goods for exportation and reads as under :
"51. Clearance of goods for exportation:
Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation."
6.2. Section 74 of the Chapter X of the Customs Act, 1962 provides for drawback allowable on re-export of duty-paid goods which reads as under :
"74. Drawback allowable on re-export of duty-paid goods (1) When any goods capable of being Page 29 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined easily identified which have been imported into India and upon which [any duty has been paid on importation,-
(i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or
(ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or
(iii) are entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent, of such duty shall, except as otherwise hereinafter provided, be re-Page 30 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined paid as drawback, if--]
(a) the goods are identified to the satisfaction of the '[Assistant Commissioner of Customs or Deputy Commissioner of Customs] as the goods which were imported; and
(b) the goods are entered for export within two years from the date of payment of duty on the importation thereof:
PROVIDED that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit.
(2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other relevant Page 31 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined circumstances, may, by notification in the Official Gazette, fix.
(3) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such regulations may--
(a) provide for the manner in which the identity of goods imported in different consignments which 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 Page 32 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined 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."
6.3. Section 75 of the Chapter X of the Customs Act, 1962 provides for drawback on imported materials used in the manufacture of goods which are exported and reads as under:
"75. Drawback on imported materials used in the manufacture of goods which are exported (1) Where it appears to the Central Government that in respect of goods of any class or description [manufactured, processed or on which any operation has been carried out in India] [being goods which have been entered for export and in respect order permitting the clearance and loading thereof for Page 33 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined exportation has been made under section 51 by the proper officer, [or being goods entered for export by post under section 82 and in respect of which an order permitting clearance for exportation has been made by the proper officer] a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the manufacture or processing of such goods or carrying out any operation on such goods), the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2):
[PROVIDED that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than Page 34 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined the value of imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of the value of the imported materials used in the 'manufacture or processing of such goods or carrying any operation on such goods] or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf:
PROVIDED FURTHER that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the [Foreign Exchange Management Act, 1999 (42 of 1999)|, such drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the Page 35 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined amount of such drawback].
[(1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods [manufactured, processed or on which any operation has been carried out in India] and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub- section (1), be deemed to be imported material.]"
6.4. Rule 13 of the Rules, 1995 reads as under :
"RULE 13. Manner and time for claiming drawback on goods exported other than by post. - (1) Triplicate copy of the Shipping Bill for export of goods under a claim for drawback shall be deemed to Page 36 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined be a claim for drawback filed on the date on which the proper officer of Customs makes an order permitting clearance and loading of goods for exportation under section 51 and said claim for drawback shall be retained by the proper officer making such order.
(2) The said claim for drawback should be accompanied by the following documents, namely :-
(i) copy of export contract or letter of credit, as the case may be,
(ii) copy of Packing list,
(iii) copy of 2[ARE-1], wherever applicable,
(iv) insurance certificate, wherever necessary, and copy of communication regarding rate of drawback where the drawback claim is for a rate de-
termined by the Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be or the [Principal Commissioner or Commissioner] of Customs and Central Page 37 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Excise, as the case may be, under rule 6 or rule 7 of these rules.
(3) (a) If the said claim for drawback is incomplete in any material particulars or is without the documents specified in sub-rule (2), shall be returned to the claimant with a deficiency memo in the form prescribed by the Principal Commissioner of Customs or Commissioner of Customs, as the case may be within 10 days and shall be deemed not to have been filed for the purpose of section 75A.
(b) where the exporter resubmits the claim for drawback after complying with the requirements specified in the deficiency memo, the same will be treated as a claim filed under sub-rule (1) for the purpose of section 75A (4) For computing the period of one month prescribed under section 75A for payment of drawback to the claimant, the time taken in testing of the export Page 38 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined goods, not more than one month, shall be excluded.] [(5) Subject to the provisions of sub- rules (2), (3) and (4), where the exporter has exported the goods under electronic shipping bill in Electronic Data Interchange (EDI) under the claim of drawback, the electronic shipping bill itself shall be treated as the claim for drawback.]"
7. On perusal of Rule 13 of the Rules, 1995, it appears that the same provides for the manner and time for claiming drawback on goods exported other than by post and that the triplicate copy of the shipping bill for export of goods is deemed to be a claim for the drawback filed on the date on which the proper Officer of the Customs makes an order permitting clearance and loading of goods for exportation under Section 51 of the Customs Page 39 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Act, 1962 and said claim of drawback is required to be retained by the proper Officer making such order.
8. Sub-section (2) of Rule 13 of the Rules, 1995 provides that the claim for drawback should be accompanied by the copy of the export contract or letter of credit, copy of packing list, copy of ARE-I, wherever applicable, insurance certificate, wherever necessary and copy of communication regarding the rate of drawback where a drawback claim is for a rate determined under the Rule 6 or Rule 7 of the Rules, 1995 by the Commissioner of Central Excise as the case may be relating to the cases where either the amount of rate of drawback has not been determined or to be determined at a lower rate.
Page 40 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined
9. Therefore, essentially there has to be a claim to be made for claiming drawback for the goods exported other than by post on the basis of the triplicate copy of the shipping bill detained by the proper Officer to be accompanied by the relevant documents as specified in Sub-rule (2) of Rule 13 of the Rules, 1995. In the facts of the case, the petitioner contended that the Invoice and Packing List, copy of relevant Shipping Bills, Triplicate Copy, Bill of Lading, original copy of BRC Bank attested and Mate Receipt were lost by the petitioner and in order to see that the drawback claim is sanctioned in the year 2011, the petitioner has placed on record the FIR filed with the Police at CST, Mumbai which was considered by the respondent No.3 to sanction the drawback claim of the petitioner. Page 41 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined
10. The Commissioner of Customs (Appeals) after considering the facts of the case set aside the order passed by the respondent No.3 by observing as under:
"Although adjudicating authority has considered the triplicate copy of shipping bill as the drawback claim, impugned order is conspicuously silent on the remaining aspects of the said rule 13, viz. whether such drawback claim (triplicate copy of shipping bill) had been retained by the proper officer who made order under section 5l and if so, whether the same was available on records and verified by the adjudicating authority before sanctioning drawback, especially since the exporter claimed to have lost all original documents pertaining to the exports; whether such drawback claim was accompanied with the documents specified at sub-rule 2(i) to (v):
whether any deficiency memo was issued Page 42 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined to the exporter in terms of sub-rule 3(a) and if so, whether they had filed proper compliance in this regard, etc. Impugned order does not indicate any reasons for the inordinate and inexplicable delay of 5½ years on the part of the respondent-exporter for claiming such a big amount of drawback, if at all they had actually filed the drawback claim along with requisite documents way back in 2005/2006. Adjudicating authority has not examined as to whether it could be a case where the exporter could not have furnished ail documents or information or could not have complied with the deficiency memo during the relevant period, and hence came out of the blue after 5½ years under the pretext of having lost all the documents. It is noticed that the adjudicating authority had made: a reference to AC, Customs, Bhuj vide letter dated 16.04.2012 to ascertain whether any drawback was sanctioned earlier on the same shipping bills, though the reply only indicates that no Page 43 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined cheque was issued to the exporter. This correspondence clearly reveals that the adjudicating was not having any records with him on the subject exports, and the drawback was sanctioned merely on the basis of the documents managed by the respondent-exporter and submitted before him.
Impugned order reveals that the respondent-exporter had obtained certificate from CST on 14.05.2011 showing details of lost documents, which has been accepted as sacrosanct by the adjudicating authority. I do not have the materials facts mentioned in the said certificate, yet I fail to understand the sanctity of such a document issued by the railway authority and that too issued after 5½ years from the exports! If this certificate means that the documents were actually lost only on or around 14.05.2011, a question comes up as to why then, the respondent-exporter had not filed the documents or claimed Page 44 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined drawback till this date? On the other hand, if the documents were actually lost earlier and the certificate was issued after 5½ years, then that certificate has no legitimate value. In either case, it is mysterious as to what prevented the respondent exporter from filing a complaint or FIR with police authorities, in case such important original documents were actually lost? Further, their claim about loss of the entire set of only original documents, with all photocopies safely available with them even at this stage, itself gives more doubt than credibility! I have also reasons to doubt a sinister design, than a mere coincidence, that they have obtained the certificate from CST on 14.05.2011 and filed drawback claim through their CHA on the same day of 14.05.2011, furnished indemnity bonds on 19.05,2011, and sourced Bank, Realization Certificates in respect of all the 10 shipping bills on 20.05.2011.Page 45 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined
9. Impugned order does not discuss as to how the adjudicating authority has verified the facts relating to the second proviso to section 75 which stipulates that if the sales proceeds are not received within the time allowed under FEMA, 1999, drawback would not be admissible. Again, impugned order is also precariously silent on the mandatory provisions of section 75A, according to which the respondent-exporter was entitled for interest after one month from filing the drawback claim, if not sanctioned by then. Adjudicating authority ought to have discussed this provision when he considered the date of filing drawback claim as the date of allowing exportation, i.e. 5½ years ago, even when the exporter (through their CHA) reportedly claimed drawback only on:
14.05.2011. Thus; I find that the adjudicating authority. has overlooked various critical components of the law and procedures, and thus the impugned Page 46 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined order suffers from grave multiple legal infirmities.
10. I must also mention, as stated in the impugned order; that the exporter through their CHA vide letter dated 14.05.2011 had requested for drawback claim for the aforesaid shipping bills which were filed nearly after more than 5½ years. However, adjudicating authority applied rule 13 of Drawback Rules and considered the date of filing drawback claim as the date of exports. I am of the view that adjudicating authority has gone overboard to alter the date of filing drawback claim, without examining the facts of the case. ie. whether the triplicate copy of shipping bills were filed along with all required documents and whether any further compliance was pending from the respondent-exporter against any deficiency memo, if issued, etc. For example, if the respondent-exporter had not submitted all the documents specified under rule 13(2) of Drawback Page 47 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined Rules, or if they had not furnished compliance to the deficiency memo, if any, issued under rule 13(3), then there is no reason for considering the date of export as the date. of filing drawback claim for the purpose of rule 13(1) or section 75A: In such cases, date of filing drawback claim should be 14.05.2011 or even after that (as BRC and indemnity bonds have been filed after 14.05.201 This This could have been confirmed only by verification of records available with the adjudicating authority, which was obviously not done. Determination of the actual date. of filing drawback is crucial in the light of mandatory provisions of section 75A. I hold that the adjudicating authority caused a grave error by zealously picking up the date of filing drawback claim from the archives without any verification.
11. Had the date of filing the claim was considered as 14.05.2011 when they actually made their claim before the Page 48 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined adjudicating authority, the same. would have been hit by the law of limitation. In the case of Sonali Steels & Alloys Pvt. Ltd. - 2000 (123) ELT 493 (Mad), Hon'ble High Court has turned down request to condone delay of even two years for filing drawback claim. In case of Hindustan Lever Ltd. - 2011 (264) 173 (Bom), Hon'ble High Court held that in the absence of period of limitation in the respective statute, proceedings have to culminate within reasonable period of time. In case of Parthas Exports - 2 (143) ELT 465 (GOI), Revisionary Authority to Government has held that drawback is not an inherent right to the exporters, but is an incentive given by the Government to promote exports by giving back the duties paid. Thus it is evident that the claimant is bound to satisfy all the conditions and to furnish all requisite documents to prove their eligibility, which the respondent-exporter grossly failed in the present case. Even during this Page 49 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined appeal proceeding. respondent-exporter could not furnish any documents proving their bonafides. Therefore, even remanding this case would not help bringing out any additional facts on records."
11. The case of the petitioner was thereafter also considered in detail by the respondent No.2 in the revisional proceedings wherein, the petitioner relied upon the Rule 5(3) of the Drawback Rules, 1995 contending that the said Rule stipulates that the provision of Section 16 or Sub-section (2) of Section 83 of the Customs Act, 1962 shall determine the amount or rate of duty drawback applicable to any goods exported under the said Rules and as the Rule 5(3) of the Rules, 1995 does not stipulate any time period for making the drawback claim, the claim made by the petitioner in the year 2011 has rightly been Page 50 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined sanctioned by the respondent No.3. The Revisional Authority after considering the submissions of the petitioner as well as the Department, upheld the order passed by the Commissioner of Customs (Appeals) by arriving at following findings and observations:
"16. Government further observes that at the time of customs clearance, the EDI system at Mundra port was not functional; therefore the goods were manually cleared for export by the applicant vide 10 manual shipping bills. As per the procedure in respect of goods manually cleared, the exporter is required to be provided with the triplicate copy of shipping bill for lodging drawback claim. It is apparent from the facts narrated that the applicant was also provided with the original triplicate copy of the shipping bill for the said purpose. However, the triplicate copy of the shipping bill was lost by the applicant Page 51 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined as has been recorded in the Police Complaint filed on 14.05.2011 with Assistant Commissioner of Police, Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai, The applicant is conspicuously silent about the exact date of loss of original documents which also included triplicate copy of shipping bill. If these documents were lost on or around 14.05.2011, then the applicant was very much in possession of these documents before 14.05.2011. Moreover, the applicant has not mentioned any specific cause that prevented them from filing drawback claim immediately on receipt of triplicate copy of Shipping Bill from the Customs after exports or sometime thereafter.
17. The factual matrix of the case brings up certain very intriguing observations. On going through the case records and the facts narrated in the revision application, it is observed that the applicant has reacted to the Page 52 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined loss of critical documents including the triplicate copy of shipping bill which had been filed manually after over 51/2 years. In the normal course, in a situation where documents have been lost, an exporter would have immediately made all out efforts to reconstruct the documents by approaching the Department, immediately filing FIR for loss of documents etc. Several Custom Houses have issued Public Notices/Standing Instructions specifying the guidelines to be followed, However, in the present case the applicant has actually slept over the loss of the documents for an extraordinarily long time. Moreover, for exports effected through Mundra Port in Gujarat, the applicant has filed Police Complaint with the Assistant Commissioner of Police, Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai. Even after this very delayed action on the applicants part, it appears to be a little out of the ordinary that the Page 53 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined applicant chose to approach the Department through their CHA for sanction of the drawback. The approach of the applicant has been very unusual. It would perhaps be common knowledge, that shipping bills filed manually unlike those filed in the EDI system can be manipulated with ease. Needless to say, the Deputy Commissioner sanctioning the drawback should have exercised more caution while processing the claim and taken note of these facts.
18. Though, as per the provisions of Rule 13 of the Customs, Central Excise Duties, and Service Tax Drawback Rules, 1995 triplicate copy of shipping bills filed for export goods should be deemed to be a claim for drawback filed on the date of permitted exports, the triplicate copy of the shipping bills is the only valid document for sanction of drawback. As stated in preceding para and as per the applicants own say, the triplicate copy in respect of all Page 54 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined the 10 manual shipping bills were lost by the applicant and therefore, they could not file the drawback claims earlier and in time. In case where such document is not available or misplaced, Public Notices/Standing Orders issued by the Department for reconstruction of lost documents for sanction of drawback would have been available to the applicant. However, instead of resorting to such a means, the applicant after 5 and ½ years filed a complaint with the Chhatrapati Shivaji Terminus Railway Police Station, CST, Mumbai for loss of such documents on 14.05.2011 and remarkably on the very same day the applicant requested for Drawback claim for the said shipping bills through their CHA."
12. The Revisional Authority also referred to and relied upon the Public Notice No.336/2001 dated 10.12.2001 and the Standing Order No.3 of 2009 dated 04.02.2009 for reconstruction of Page 55 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined the lost triplicate copies of the shipping bills and held that as the petitioner filed the drawback claim after five and half years of exports, cannot take shelter behind the Rule 13 of the Rules, 1995 that triplicate copy of the shipping bill for export of goods which deem to be a claim for drawback when the main document required for filing the claim i.e. triplicate copy of the shipping bill was handed over to the petitioner after export but was not submitted for processing the drawback claim. It was therefore held that non- availability of the documents with the petitioner cannot be equated with the collateral documents required to be filed under Rule 13(2) of the Rules, 1995 and failure to submit the triplicate copy of the shipping bill would amount to not having filed the drawback claim.
Page 56 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined
13. Considering the findings arrived at by the Commissioner of Customs (Appeals) and the Revisional Authority, the short question which arises for consideration is whether the drawback claim of the petitioner can be considered after lapse of more than five years by the respondent-Authority or not, more particularly, in absence of the required triplicate copy of the shipping bill.
14. On perusal of the facts considered by the Appellate and the Revisional Authority, it appears that at the relevant time in the year 2005-06, the goods were manually cleared for export by the appellant vide ten shipping bills and therefore the petitioner was required to be provided with the triplicate copy of the shipping bills for lodging the drawback claim. The petitioner was also provided with the triplicate copy at the Page 57 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined relevant time which was reported to be lost in the year 2011. Therefore, there is no explanation for not submitting the original triplicate copy of the shipping bill available with the petitioner.
15. The petitioner was given one more chance by this Court to explain the delay by filing Additional Affidavit which is also silent about the delay and laches on part of the petitioner from the year 2006 to 2011. The said Additional Affidavit reads as under :
"2. I say that GIll & Co had exported Indian Raw Cotton during the year F.Y 2005-06 and was claiming drawback. The work relating to the exports and follow up on drawbacks was being looked after by Mr. Chandrakant Lodaya. However, Mr. Chandrakant Lodaya left the Petitioner's employment in the year 2006.Page 58 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025
NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined
3. I say that the on account of the improper transfer of charge and responsibilities the Petitioner's representatives were under impression that all claims of duty drawback for all their eligible exports were processed and allowed. Sometime in the year 2011, petitioners during the internal examination and weeding out of documents, realized that they had not received drawback for all their exports.
4. The Petitioners on realizing that the claims for drawback was pending, immediately instructed its peon Mr. Sudhakar Pagare to collect the connected documents from the company's warehouse located in Cotton Green area, at Mumbai. Unfortunately while coming from Cotton Green to CST, Mumbai by train, the said documents were lost in transit, after which FIR were registered in this regard.
5. I say that the delay in perusing the Drawback claims were not on account Page 59 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined of any deliberate act or negligence on part of the Petitioner and the Petitioners did not stand to gain in any manner by delaying the proceedings.
6. I state that what is stated herein above is true to the best of my knowledge, information and belief.
Solemnly affirmed at Mumbai on this 28th day of January, 2025."
16. Considering the above averments made on oath by the petitioner, it is clear that both the Appellate Authority as well as the Revisional Authority have rightly come to the conclusion that when the documents were lost on or around 14.05.2011, the petitioner was having the same documents in its possession and in absence of any specific dates made available for loss of such original documents, for the specific cause that prevented the Page 60 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined petitioner from filing the drawback claim immediately on receipt of the triplicate copy of the shipping bills from the Customs after export or some reasonable time thereafter, the only reason given by the petitioner is that the person handling the affairs of drawback claim had left the employment. We are therefore of the opinion that such vague excuse on part of the petitioner cannot be accepted as there is clear delay and latches on the part of the petitioner to lodge the claim and the contention raised on behalf of the petitioner that the duty was cast upon the respondent-Authority to sanction the claim is also not acceptable in view of the fact that the original triplicate copy of the shipping bill was with the petitioner at the relevant time which was lost in the year 2011 and there is no plausible explanation coming forth from Page 61 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025 NEUTRAL CITATION C/SCA/16462/2022 ORDER DATED: 30/01/2025 undefined the petitioner to explain the delay and laches from the year 2006 to 2011.
17. In view of the foregoing reasons, the petition fails as we are not inclined to interfere in the concurrent findings of fact arrived at by the Commissioner of Customs (Appeals) as well as the Revisional Authority while exercising the extra-ordinary jurisdiction under Article 227 of the Constitution of India. The petition, being devoid of any merit, is accordingly dismissed. Notice is discharged.
(BHARGAV D. KARIA, J) (D.N.RAY,J) PALAK Page 62 of 62 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 00:52:03 IST 2025