WIPRO INFORMATION TECHNOLOGY LIMITED BANGALORE Vs. UNDER SECRETARY DRAWBACK DIRECTORATE DEPARTMENT OF REVENUE MINISTRY OF FINANCE NEW DELHI

JUDGEMENT

(1.) IN this petition, the petitioner has prayed for a writ in the nature of certiorari quashing the communication dated 6th of February 1990, a copy of which has been produced as Annexure-B, issued by the respondent and for a further direction in the nature of a writ of mandamus directing the respondent to dispose of the application filed by the petitioner under Rule 15 of the Customs and Central Excise Duties Drawback Rules, 1971 (hereinafter referred to as "the Rules" ).

(2.) A few facts that may be relevant for the disposal of the writ petition, may be set out as hereunder: (a) It is the case of the petitioner that the petitioner is engaged in the manufacture and marketing of Micro processor based computer systems and the petitioner imports large quantity of components for the purpose of computer systems and while importing the components, the petitioner pays the customs duty as applicable under the Customs Act, 1962 (hereinafter referred to as 'the Act' ). It is also the case of the petitioner that the petitioner is an exporter and the petitioner sells the computer system outside India and in terms of Rule 6 of the Rules, the petitioner made an application on 27th of June, 1989 before the Directorate of Drawbacks for the determination of the rate of drawback of duties of the customs paid in view of the export of certain computers manufactured by the petitioner-company to the sultanate of Oman during 1988; and in the said application, the petitioner also prayed for condonation of delay in filing the application as provided under the. proviso given to Rule 6 (1) (a) of the Rules; and pursuant to the said application, the petitioner received a communication from the Directorate of Drawback directing it to produce the proof of the date of export and to furnish customs authentication of the same. According to the petitioner, the goods exported by the petitioner left India by an air craft belonging to Gulf Air; and M/s. Jet Air Private Limited, the general Sales Agents of the Gulf Air, had issued Transhipment certificate indicating the date of departure of the export of goods as 29th of April, 1989 and the petitioner relying upon the transhipment Certificate, had lodged an application for fixation of rate of duty drawback on 28th of June, 1989; however, subsequently, it was discovered by the petitioner that the goods exported by it had actually left by the flight on 24th of April, 1989 and not on 29th of April, 1989 as mentioned in the Transhipment certificate issued by M/s. Jet Air Private Limited; and thereafter, when the petitioner pointed out the error committed by M/s. Jet air Private Limited, in the Transhipment Certificate issued by them, with regard to the date of export of the goods made by the petitioner, they admitted the clerical error committed by them. It is the further case of the petitioner that since the Directorate of drawback was empowered to condone the delay of 30 days only in addition to 30 days permitted to file the application, the petitioner filed an application under Rule 15 of the Rules praying for condonation of delay of another 5 days; and the respondent, by means of communication Annexure-B, has rejected the prayer of the petitioner to condone the delay on the ground that the government has no power to condone the delay as the claim made by the petitioner was considered under Rule 6 or 7 of the Rules.

(3.) THE learned Counsel for the petitioner submitted that the order/communication Annexure-B issued by the respondent rejecting the application of the petitioner seeking condonation of delay caused in filing the application for determination of drawback of duties of customs paid by the petitioner, requires to be quashed on the ground that the decision has been taken by the respondent in a mechanical manner and without application of mind with regard to the power conferred on the central Government to condone the delay caused in filing the application beyond 30 days in addition to 30 days period prescribed for filing the application. The learned Counsel pointed out that upto the period of 30 days beyond 30 days period prescribed under Rule 6 of the Rules, the central Government is conferred with the power to condone the delay caused in filing the application if it is satisfied that the manufacturer or exporter was prevented by sufficient cause from filing the application within a period of 30 days from the date of the export of such goods allowed under sub-rule (1) (a) of Rule 6 of the Rules and if the application is filed beyond 60 days from the date of the export of the goods, under rule 15 of the Rules, power is conferred on the Central Government to condone the delay irrespective of the period of delay.