The main legal point established in the judgment is that Rule 7A of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 allows for the condonation of delay in filing a claim for refund of customs duty if the exporter has failed to comply with the rules due to reasons beyond their control.

There is no appearance on behalf of the respondent, accordingly, we have heard learned counsel for the petitioner.

2. The petitioner is a firm and had imported photographic colour films by paying customs duty of Rs.19,12,281/- vide TR-6 challan dated 24.4.2003 under cover of bill of entry No. 836127 dated 16.4.2003.

3. The petitioner re-exported the said goods within about four months of import, to another overseas buyer M/s Jamaica Trading EST. The said export was made vide shipping bill No. 2095 dated 12.8.2003.

4. As the petitioner had re-exported the same goods which were imported on payment of customs duty of Rs.19,12,281/-, they filed an application for refund of the customs duty under Section 74 of the Customs Act, 1962(Act, for short).

5. The Petitioner received duty drawback or refund of Rs.18,74,035/- on 8.4.2004. 6. Subsequently, the respondent issued a show cause notice dated 8.9.2004 on the ground that the payment of Rs.18,74,035/- was erroneous as drawback or refund of duty was filed after six months 22 days, which was beyond period of three months and the extendable period of another three months, allowed under Rules 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995, (the Rules, for short).

6. The petitioner protested and filed objections.

7. By order dated 1.11.2004 the Assistant Commissioner, Customs held that the claim for refund was beyond six months and the authorities concerned did not have the power to condone the delay of 22 days. Accordingly, he confirmed the demand of Rs.18,74,035/-, as the drawback amount had been erroneously paid. The said demand was recoverable under Rule 7 of the Rules read with Section 28 of the Act. In this order, the Assistant Commissioner of Customs also referred to Rule 7A which empowers the Central Government to condone the delay beyond six months. The relevant portion of the said order reads as under: ? The party claimed in the defence that benefit of Rule 7A of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 may be granted to them. However, I do not accept this plea for the reason that the competent authority for consideration this application under Rule 7A of the Re-export of Imported goods (Drawback of Customs Duties) Rules, 1995 is Central Government and that as per Rule 5 of drawback rules the Asstt. Commissioner is competent to only condone delay upto 3 months only.

8. The petitioner filed an appeal against the said order before the Commissioner of Customs (Appeals) but the same had been dismissed vide order dated 29th December, 2006. Before the Commissioner of Customs (Appeals), the petitioner had contended that they had prayed for condonation of delay in their initial application dated 11th March, 2004 and in case only the Central Government had the power to condon the delay in terms of Rule 7A, their application should have been forwarded to the Central Government. The Commissioner of Customs (Appeals) rejected the said ground, inter alia, observing:

?The appellant has contended that the adjudicating authority should have forwarded their application for relaxation of the provisions of the Rules to the Central government in terms of Rule 7A of the said Rules. It is observed that the adjudicating authority has clearly observed in his adjudication order that there was no request from the appellant for condonation of delay in their refund claim dated 11.3.04. Even if it is accepted that they had filed such a letter, the Rules do not place any obligation on the adjudicating authority to forward their application to the central Government. In fact, the appellant should have realized that their claim for refund was barred by limitation and they should have themselves applied to the Central Government under Rule 7A for relaxation of 22 days delay in filing the refund claim under Section 74 of the Customs Act read with Rule 5 of Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. They have not done so, an