Steel Authority of India Ltd. and Anr. Vs. Union of India and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/110568
CourtKolkata High Court
Decided OnJul-28-2017
JudgeDebangsu Basak
AppellantSteel Authority of India Ltd. and Anr.
RespondentUnion of India and Ors.
Excerpt:
w.p.no.1063 of 2013 in the high court at calcutta constitutional writ jurisdiction original side steel authority of india ltd.& anr. versus union of india & ors.for the petitioners : mr.arijit chakraborty, advocate for the respondents : mr.amitabrata ray, advocate mr.bhaskar prosad banerjee, advocate hearing concluded on : july 4, 2017 judgment on : july 28, 2017 debangsu basak, j.:- 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 firs.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 firs.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 firs.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. w.p.no.1063 of 2013 is disposed of accordingly. no order as to costs. [debangsu basak, j.].
Judgment:

W.P.No.1063 of 2013 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Steel Authority of India LTD.& Anr.

versus Union of India & ORS.For the Petitioners : Mr.Arijit Chakraborty, Advocate For the Respondents : Mr.Amitabrata Ray, Advocate Mr.Bhaskar Prosad Banerjee, Advocate Hearing concluded on : July 4, 2017 Judgment on : July 28, 2017 DEBANGSU BASAK, J.:- 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 fiRs.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 fiRs.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 fiRs.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.

W.P.No.1063 of 2013 is disposed of accordingly.

No order as to costs.

[DEBANGSU BASAK, J.].