WAVIN INDIA LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) By filing this writ petition the petitioners have approached this Court, inter alia, for issuance of a writ of mandamus or any other appropriate writ, order or direction directing the respondents to refund to the petitioners the duty drawback at the rate of 98% under the provisions of Section 74(1) of the Customs Act, 1962 (hereinafter referred to as "the Act").

(2.) The facts relevant to these proceedings required to be noted are as under. The petitioners, engaged in the manufacturing activity, imported machine from Germany and on installation it was realised that the machine was not operating satisfactorily and cannot be used for the purpose of production. Different parts of the machinery were imported vide different bills of entry in the year 1990 (to be precise from 11.5.1990 to 24.6.1991) as noted in the Order No. 731/95 made by the Government of India. They were re-exported under claim of supplementary drawback under Section 74 of the Customs Act, 1962 on 23.9.1992 i.e. after two years and four months.

(3.) It is contended by the petitioners that during this intervening period the goods were not used by them and, therefore, according to the petitioners Section 74(1) of the Act would be applicable and the petitioners would be entitled to get duty drawback at the rate of 98%. We are not examining the matter in detail as the appellate authority has not recorded a finding insofar as use is concerned. However,it stated as under: