DEBANGSU BASAK,J. - (1.) The petitioner assails an order passed by the Government on revision. By the impugned order, a request for drawback has been rejected.
(2.) Learned senior advocate for the petitioner submits that, the petitioner had exported imported fertilizer to Bangladesh. He refers to a letter dated March 28, 2000 and submits that, at the time of the export, the petitioner had expressed its intention to claim the drawback. The claim for drawback was made in the bill of shipping itself. He refers to the bill of shipping and the claim made therein. He submits that the claim for drawback is governed by the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. He submits that, the demand of a drawback is ingrained in the bill of shipping. He submits that, such demand for drawback is to be treated to be in terms of Rule 5 of the Rules of 1995. He submits that, in the event of the department not considering the application for drawback to be contained in the bill of shipping itself, then the department can extend the time for submitting an application for drawback in terms of Rule 7A of the Rules of 1995. He submits that, Rule 7A of the Rules of 1995 provides for relaxation of the provisions by the Central Government.
(3.) Learned senior advocate for the petitioner submits that, the goods has a checkered history, in the sense that, initially provisional assessment was made and that, the same was carried up to the Tribunal level. The petitioner has made a claim after the clarity on the duty payable at the Tribunal level. The application for drawback was made within two and half months of the final order of the Tribunal. Therefore, the application for duty drawback is to be treated within the time frame of Rule 5 of the Rules of 1995. He refers to 1999 (112) E.L.T. 689 (G.O.I.) (In Re : Funskool India Ltd.) and submits that, the Central Government has taken a view that, an application for duty drawback is to be held to be within time if the same is made within three months after the provisional assessment has been made. He relies upon 1989 (43) E.L.T. 424 (Tribunal) (Poulose and Matthen v. Collector of Central Excise) and submits that, assuming that the initial application for duty drawback contained in the bill of shipping is found to be made to a wrong officer, such an application cannot be treated as void ab initio. He submits that, Poulose and Matthen (supra) was carried to the Supreme Court where their Lordships' did not interfere with the order of the Tribunal. He relies upon 2000 (120) E.L.T. A64 (S.C.) and A65 in support of such contention.;