:1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1670 OF 2010 Godrej Industries Ltd. ..Petitioner Vs. Union of India & Ors. ..Respondents Mr.V.Sridharan with Mr.Prakash Shah i/b. PDS Legal for petitioner. Mr.M.I.Sethna, Senior Advocate with Mr.J.B.Mishra for respondents. CORAM :­ V.C.DAGA & K.K.TATED,JJ. DATE : 23RD MARCH,2010 P.C. 1. Heard. Perused petition. Rule, returnable forthwith. Mr.J.B.Mishra waives service on behalf of the respondents. Heard finally by consent of the parties. INTRODUCTION 2. This petition, filed under Article 226 of the Constitution of India is directed against the order dated 24th December, 2009 passed by respondent No.2, the Joint Secretary (Drawback), Central Board of Excise & Customs, Government of India, Ministry of Finance, Department of Revenue, New Delhi refusing to condone delay in filing drawback application since it was filed beyond 90 days’ from the Let Export Order (“LEO” for short). :2: BACKGROUND FACTS: 3. The background facts leading to the present petition are, that the petitioner M/s.Godrej Industries Ltd., Mumbai engaged, interalia, in the manufacture of excisable goods falling under different chapters of the Schedule of the Central Excise Tariff Act,1985 has its factory at Pirojshanagar, Eastern Express Highway, Vikhroli, Mumbai­400079. 4. The petitioner holding itself entitle to claim draw back of customs duty cleared on imported inputs consumed in manufacturing resultant finished goods i.e. Oleic Acid exported during the period from 29th August, 2008 applied for determination of Brand rate of Drawback with the office of the Commissioner of Central Excise Commissionerate, Mumbai – 400012. 5. The aforesaid application was required to be filed as per Rule 6(1)(a) of the Customs, Central Excise Draw back Rules, 1995 (“the DBK Rules,1995” for short), with the jurisdictional Central Excise Commissionerate for fixation of rate of drawback within six 60 days from the date relevant for applicability of the amount or rate of draw back in terms of sub rule (3) of rule 5 where no rate of drawback has been determined. The Commissioner of Customs, in exercise of powers under proviso to rule 6 can permit filing of such application within further period of 30 days, if satisfied that the exporter was prevented by sufficient cause from filing application. The Government of India, in view of various representations received by it thought it fit to issue circular bearing No. 82/98 dated 29th October, 1998 to consider the question of condonation of delay in filing application for fixation of Brand rates under DBK Rules,1995. The clause thereof relevant to the controversy involved herein is reproduced hereinbelow for immediate reference. 3(Viii) Time­Limit for filing Brand Rate application: As per the provisions of Rule 6 and 7 of the Customs & Central Excise Duties Drawback Rules,1995 (as amended), the Brand Rate applications are required to be filed maximum within a period of 60 days from the Let Export Date of the first Shipping Bill. Delay upto 30 days, i.e. upto :3: 90 days from the Let Export Date may be generally condoned on receipt of the exporter’s application in this regard. In case the Branch Rate application is for a number of Shipping Bills or a period of time, Brand Rate may be fixed excluding only the Shipping Bill/period which stands time­barred. 6. With the aforesaid preface, facts reveal that the petitioner’s shipping bill was dated 29th August, 2008, whereas the LEO shipping bill was obtained by the petitioner on 1st September, 2008. The DBK application, thus ought to have been filed by the petitioner on or before 31st October, 2008. The grace period of 30 days beyond normal period of 60 days generally allowable on the request of the parties had expired on 30th November, 2008. However, the petitioner’s DBK application was filed on 1st December, 2008. According to the Petitioner 29th and 30th November, 2008 being Saturday and Sunday, the offices of the Central Government were closed, as such, as per Section 10 of the General Clauses Act, the last day for filing application being holiday, as such the next working day was the last day for the purposes of filing application. That is how petitioner claimed its application was well within limitation. 7. Lastly, the petitioner also sought to furnish an explanation for not filing DBK claim application on 27th and 28th November, 2008, stating that the South Mumbai was completely paralyzed due to the terror attack in the Bombay and that the office of the Central Excise Commissionerate was not open for public due to the security reasons. The petitioner vide their letter dated 19th December, 2008, disclosed reasons for filing application on 1st December, 2008. According to the Commissioner, Central Excise, Bombay, the application was beyond the period of 90 days, as such it was not within his powers to condone delay under Rule 6 of the DBK Rules, as such he recommended to the Joint Secretary, DBK, New Delhi to condone delay in filing application beyond the period of 90 days in exercise of powers conferred on the Central Government as per Rule 17 of the DBK Rules,1995 which reads as under: :4: Rule 17 – Power to relax: If the Central Government is satisfied that in relation to the export of any goods, the exporter or his authorised agent has, for reasons beyond his control, failed to comply with any of the provisions of these rules, and has thus been entitled to drawback, it may, after considering the representation, if any, made by such exporter or agent, and for reasons to be recorded in writing, exempt such exporter or agent from the provisions of such rule and allow drawback in respect of such goods. 8. The aforesaid Rule 17 gives powers to the Central Government to condone the delay after examining the reasons. The Central Government has issued a circular dated 29th October,1998 (cited supra). This Circular lays down general guide­lines for condonation of delay in filing application/claim of DBK. The relevant part thereof reads as under: Sr. No. Reason for delay Period of Condonation beyond the period permitted under Rule 6/7. 8 Where delay in filing of brand rate application is on account of law and order problems riots/strikes or an abnormal situation prevailing in the area of the place of production of export goods or their Registered or Head Office which may prevent access to the export documents. One year from let export date. 10 Where brand rate is filed by mistake to a different authority resulting in delay in the receipt of such application in the Directorate of Drawback in the Department of Revenue. One year from let export date. 9. According to the petitioner, their application was filed well within time with the Division Office, as such, the matter was covered by paragraph 10 of the said Circular. As pointed out hereinabove, according to the petitioner, respondent No.3 had already sent request to respondent No.2 to condone delay with favourable recommendation. However, respondent No.2 refused to condone delay of one day beyond the grace period of 30 days. This order is the subject matter of challenge in the present petition. :5: SUBMISSIONS: 10. Mr.Sridharan, learned Counsel for the petitioner submits that respondent No.3 erred in holding that the application filed in his office on 1st December, 2008 was beyond a period of 90 days from the LEO dated 1st September, 2008. According to him, 29th and 30th November, 2008 being Saturday and Sunday, the period of 90 days expired on 30th November, 2008 as such 1st November, 2008 was the only day on which the petitioner could have filed their application. According to him, it was well within 90 days from the date of LEO, in view of Section 10 of the General Clauses Act,1947. Reliance is also placed on the Circular dated 6th March, 2003 referred to hereinabove, in support of the prayer for condonation of delay. PER CONTRA: 11. At the outset, Mr.Sethna, learned Senior Counsel appearing for the respondents, contends that admittedly there was delay in filing application. It was filed beyond a period of 90 days. In his submission, the provision of Section 10 of the General Clauses Act cannot be invoked in the facts of the present case. He submits that statutory provisions of Section 10 is applicable only if the period of limitation prescribed by the Statute is to be calculated. Once the statutory period of limitation prescribed by the Statute has expired, Section 10 of the General Clauses Act has no application. The applicant/petitioner was thus obliged to explain delay to the satisfaction of the authority concerned to consider the question of condonation of delay. However, Mr.Sethna, in all fairness, left the matter to the discretion of this Court to consider the prayer for condonation of delay CONSIDERATION: 12. Having heard rival parties, Mr.Sethna is justified in contending that Section 10 of the General Clauses Act cannot be invoked in the facts and circumstances of the case. Obviously, the application for Draw back was beyond a period of 90. :6: 13. At any rate, when there was recommendation by respondent No.3 to the Joint Secretary, Drawback, New Delhi to condone delay, it ought to have been considered in it proper perspective in the interest of justice, taking into account the peculiar facts and circumstances of the case. 14. The petitioner is justified in requesting this Court to take judicial note of the fact that on 26th November, 2008, South Mumbai was paralyzed due to the terrorist attack with the result, on 27th and 28th November, 2008, most of the Government Offices were not open for transacting daily business, though technically, offices were open but nobody was allowed to enter in the Government Offices due to security reasons. Even staff members were absent. The terrorist attack in Mumbai on 26th November, 2008 was witnessed not only by the people residing in Mumbai but it was seen by the entire nation. Thus, taking over all view of the matter, delay in presenting draw back application is liable to be condoned and the order to the extent it refused to condone delay is liable to be set aside. The delay stands condoned. The application of the petitioner for DBK claim is restored to the file of respondent No.3 with direction to consider it on its own merits in accordance with law within eight weeks from the date of receipt of copy of this order. 15. In the result, Rule is made absolute in terms of this order with no order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)