This Writ Petition is filed challenging Ext.P7 order passed by the revisional authority in the revision application filed by the respondents under S.129DD of the Customs Act, 1962. The above revision was filed by the 2nd respondent against the order passed in appeal No.325/2008 dated 10.11.2008 by the 4th respondent. By the order impugned, the Revisional Authority set aside Ext.P6 order passed in appeal by the 4th respondent and restored Ext.P5 order passed by the 3rd respondent, by which the petitioner’s claim for draw back was rejected as time barred on the ground that the petitioner had not complied with the requirements pointed out in the deficiency memo within the statutory period of six months provided in R.5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995. The legality and propriety of the reasoning whereby the 5th respondent set aside Ext.P5 and allowed the revision by Ext.P7 are under challenge in this Writ Petition.

2. In June 2006, the petitioner exported certain parts of the Bipolar Membrane Cell Electrolyser. Subsequently, these were re-exported under the claim for drawback under S.74 of the Customs Act 1962. According to the petitioner, the equipments were re-exported after getting free replacement from the supplier which were cleared under Bill of Entry No.179617/07.06-06 and the goods were re-exported within 17 months of import and hence within the prescribed time limit of two years under S.74 of the Customs Act, 1962. Thus, statutory condition for being eligible for draw back under Section 74 had been complied with. But, the 5th respondent, allowed the revision on a finding that the application was defective and the defect was not cured within a period of six months, as contemplated under R.5(4)(a) of the Re-export of the Imported Goods (Drawback of Customs Duties) Rules, 1995.

3. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.

4. The sum and substance of the arguments advanced by the learned counsel for the petitioner is that the 5th respondent failed to appreciate the distinction between the provisions of S.74 and 75A of the Customs Act. According to the learned counsel, S.74 deals with the eligibility for drawback; but 75A deals with eligibility for interest on drawback. R.5(4) of the Drawback Rules deals with the procedure to be complied with, in order to claim interest on drawback and the said rule does not come into application in the instant case as the petitioner has not claimed interest under S.75A of the Customs Act.

5. Per contra, the learned Standing Counsel for Central Government contends that R.5(4)(a) of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 is applicable to both Ss.74 and 75A of the Customs Act and there is no distinction between the 74 and 75A in this respect. Since the petitioner has not cured the defects and resubmitted the application after curing the defect within a period of six months, the application shall be deemed not to have been filed. Thus, the revisional/authority is justified in allowing the appeal and by effecting the claim of the petitioner.

6. In view of the rival pleas, the question to be considered is, whether Rule 5(4)(a) of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 is applicable to a claim for drawback only, under S.74 of the Customs Act. Since the question in controversy revolves around R.5(4)(a), it is apposite and profitable to extract the relevant rule which is given below:

Rule 5(4) fa)

“Any claim which is incomplete in any material particulars or is without the documents specified in sub-rule (2) shall not be accepted for the purpose of Section 75A and such claim, shall be returned to the claimant with the deficiency memo in the form prescribed by the [Principal Commissioner of Customs or Commissioner of Customs, as the case may be] within fifteen days of submission and shall be deemed not to have been filed;

(b) Where exp