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7. In the present case, the defect memo has been published and this, in
my view, would not satisfy the specific requirement of Rule 13(3), which states
that a defect memo should be served on the assessee/exporter calling for rectifi-
cation of the defects. Admittedly, no defect memo has been issued to the peti-
tioner pointing out to it the defects that ostensibly arise in its drawback claims.
Had this Rule been complied with, the petitioner might well have rectified the
defects, thus paving the way for a timely disposal of its drawback claims. The
flaw has occasioned at the door of the Department by the violation of principles
of natural justice, specifically Rule 13(3) of the Rules.
8. This aspect of the matter has been considered by a Division Bench of
the Bombay High Court in Balaji Impex v. Union of India [2012 (279) E.L.T. 485]
where, in the context of a similar Public Notice, the Bench has said that ‘merely
because there was a special drive to clear a backlog of matters, that would afford no justi-
fication for the department not to comply with the fundamental principles of natural jus-
tice. Efficiency in the disposal of the quasi judicial proceedings is important but, that
cannot be at the cost of overriding fundamental principles known to the law of the land’.
Though these observations have been made in the context of a special initiative
by the Customs Department for finalisation of provisional assessments of certain
specified bills of entry, the observations are equally relevant in the present case,
if not more so. This is for the reason that an assessee who has made a claim for
drawback should be put to notice if there are defects in the claim. Not doing so
would frustrate the spirit, object and intention of the drawback scheme itself,
which is a scheme that has been brought in as a benefit to exporters.
9. I am thus of the view that the rejection of representation dated 5-11-
2004 on the ground that all drawback claims were brought to nil is flawed. I am
conscious of the fact that this order has not been challenged before me. However,
this is the order which is the foundation of all subsequent proceedings. In effect,
it is this order that has been modified by the Commissioner of Customs (Ap-
peals) on 29-11-2012 when, out of 35 transactions, he rejects claims in respect of
12 shipping bills relating to the period pre-30-6-2000 and allows claims in respect
of 23 shipping bills relating to the period post 30-6-2000. The rejection is based
solely on Public Notice dated 16-6-2000. As stated earlier, the petitioner should
not be denied the benefit of drawback based merely on a Public Notice, particu-
larly when the petitioner has satisfied all other requirements under the relevant
Notification/Scheme, thus frustrating the object of the scheme itself.
10. Though Mr. Srinivas argues that there is no sanction in law for the
petitioner to have filed supplementary claims on 2-3-2010 wherein the petitioner
seeks benefits in respect of transactions relating to 1999-2001, after the elapse of
two decades, the sequence of dates and events as set out above indicates clearly
that the petitioner has not been sitting pretty, but has been agitating the matter
from the word go, specifically raising the issue of violation of principles of natu-
ral justice right from inception.
11. In the light of the discussion as aforesaid, this Writ Petition is al-
lowed. The claim of rebate in relation to the twelve transactions denied under the
impugned order shall be sanctioned and paid over to the petitioner within a pe-
riod of six (6) weeks from date of receipt of copy of this order. No costs.
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