J.K. Ranka, J.Instant writ petition is preferred by the petitioner assailing the order dated 15-12-2009, passed by the Joint Commissioner to the Government of India, Ministry of Finance (Department of Revenue), New Delhi, who as the Revisional Authority while disposing of the revision application filed by the Commissioner of Customs, Air-Cargo Exports, NCH, New Delhi u/s 129DD of the Customs Act, 1962, has upheld the order passed by the jurisdictional Asstt. Commissioner (Drawback). The petitioner is also aggrieved by the order dated 26-9-2012 passed by the respondent No. 3 by which the application preferred by the petitioner seeking condonation of delay in filing supplementary drawback claim has been dismissed. The brief facts as has been gathered on perusal of the impugned order and on the basis of the arguments advanced by counsel for the parties, are that the petitioner is a partnership firm duly incorporated under the provisions of the Indian Partnership Act, 1932 and is dealing in the business of import and export of readymade garments since 1991. The brief controversy, which has been raised by filing instant writ petition, is that during February and April, 2006, the petitioner firm had exported certain goods via air shipment to Japan & the Netherlands after submitting all the requisite documents with a bona fide intention to receive custom and excise duty drawback facility as per Customs Rules, 1995.

2. Finding some flaw in the said claim, the duty drawback and excise portion of duty drawback was denied on eleven shipping bills. The Assistant Commissioner (drawback) originally conveyed to the petitioner that eleven shipping bills were found to be time barred as they were not submitted within three months from the date of payment of the original drawback. It also expressed that the reason, if any, shown for condonation of delay, had not been found justifiable. As such, an appeal was preferred before the Commissioner (Appeals). The Commissioner (Appeals) vide order dated 4-7-2008 allowed the appeal of the petitioner by observing, inter alia, that the reasons given by the petitioner are strong and sufficient enough to condone the delay in filing the supplementary claims and direction was given to the adjudicating authority to dispose of the supplementary drawback claims on merits.

3. The Commissioner of Customs, New Delhi, aggrieved with the said order, preferred a revision application u/s 129DD of the Customs Act, 1962 before the revisional authority namely; the Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue). The revisional authority vide order dated 15-12-2009 quashed and set aside the order passed by the Commissioner (Appeals) and vide impugned order upheld the findings of the adjudicating authority i.e. the Jurisdictional Assistant Commissioner (Drawback).

4. Subsequent to that, an application/representation dated 14-2-2011 was moved to the revisional authority who decided the revision for condoning the delay in filing the supplementary drawback claim as according to the petitioner, there were certain mistakes. However, the revisional authority did not accept the contention of the petitioner and vide order dated 26-9-2012 rejected the application. Both the orders dated 15-12-2009 and 26-9-2012 have been assailed by the petitioner by way of filing the instant writ petition.

5. Counsel for the petitioner submitted that on account of certain bona fide reasons, the petitioner could not submit the supplementary claim under Rule 15 of the Customs, Excise Duties and Service Tax (Drawback) Rules, 1995 and the reason was also provided to the adjudicating authority about the delay caused in filing the said supplementary claim. He contended that there is no flaw in the claim and merely because there was a delay, therefore, the said supplementary claim has been disallowed. He contended that slight delay ought to have been condoned by the revisional authority and at one point of time, when even the Commissioner (Appeals) was satisfied then the revisional authority ought to have followed the view expressed by the Commissioner (Appeals). Ld. counsel contended that the Commissioner (Appeals) was satisfied insofar as the condonation is concerned. He submitted that the petitioner was prevented by good, sufficient and reasonable causes namely; (i) the bank statement was received late and therefore, the petitioner could not ascertain the amount of duty drawback; (ii) the partner/other authorized persons were all busy in attending international trade fairs by which they got engaged in not only looking after production but also other matters and therefore, could not follow up with the claim. He contended that since the adjudicating authority has not expressed anything adverse about the claim, therefore, insofar as the merits of the claim is concerned, it is established and once it is established on merits and the claim is proper, then slight delay ought to have been condoned which at one point of time, the Commissioner (Appeals), being an appellate authority, decided in favour of the petitioner. He relied upon the judgments rendered by the Honble Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, Apangshu Mohan Lodh and Others Vs. State of Tripura and Others, and Collector, Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and contended that even the Honble Apex Court has time and again expressed that the claim ought not to be dismissed on account of technical reasons or otherwise. He contended that the Honble Apex Court time and again has expressed that in absence of anything shown mala fide or deliberate, the delay as a dilatory tactic, Courts should normally condone the delay and in the instant case, there was no obvious reason except bona fide reasons that the delay was caused. He contended that the writ petition deserves to be admitted and the claim deserves to be allowed.

6. Per contra ld. Counsel for the Revenue contended that the revisional authority as also the adjudicating authority had rightly rejected the claim of the petitioner as no good reason was assigned for condoning the delay. He further contended that the benefit, if any, was to be availed by the petitioner and if the petitioner himself was not vigilant, then he has to suffer on account of his own lapses. He further contended that the revision was decided in December, 2009 and the present writ petition has been filed in March, 2013 which is also alter about 4 years which also speaks that even for availing of an appropriate remedy, the petitioner slept over and therefore, even for this reason, the writ is not maintainable and no benefit can be conferred upon the petitioner and accordingly prayed that the writ petition be dismissed with costs.

7. We have heard ld. counsel for the parties and gone through the impugned orders as also the order of the adjudicating authority and the other material placed on record.

8. At the outset, it may be observed that the revisional authority passed an order as early as on 15-12-2009 wherein, after detailed analysis of the material place on record, the revisional authority came to the conclusion that the two reasons assigned by the petitioner are no good reasons and there was lapse on the part of the petitioner. It also expressed that there are already guidelines issued from time-to-time by the Custom authorities as also by way of public notice. The attention has been drawn on public notice/guidelines which have been circulated all throughout bearing Public Notice No. 44/96, dated 27-8-1996 which has expressly provided that once the goods are exported, the status of the drawback claim whether signed or under any query/deficiency, is always available in the EDI System and can be ascertained by the exporter or their authorized person from the counter at the service center. It further goes on to say that the designated bank also credits the drawback amount in the account of the exporter on the next day and informs the exporter by sending a fortnightly statement about the payment of drawback claims to them. Therefore, the onus of ascertaining the status of the drawback claim, whether sanctioned short or under any query/deficiency, so as to avoid any delay in tiling the subsequent supplementary drawback claims, solely lies on the exporter himself. The said public notice further expresses that the customs authorities have even gone to the extent of stating that the drawback claims are being processed through the EDI System by the officers of the Drawback Branch on first cum first serve basis and there is no need for filing separate drawback claims. The status of the Shipping Bills and sanction of the drawback claim can be ascertained by the trader from the query counter set up at the Export Service Center. If any query has been raised or deficiency noticed, the same will be shown on the terminal and the printout of the query/deficiency may be obtained by the authorized person of the Exporter from the service center. The exporters in their own benefit and interest are advised to reply to such queries expeditiously and such replies shall be entered in the EDI System at the Service Center. Thus, in the light of the said Circular, in our view as well, the reasons, which have been assigned, are no good reasons at all as the bank promptly credits the amount in the account of the exporter on the very next day and also sends fortnightly statements to the exporter i.e. the petitioner herein must have received the statement and nothing has been spelt out in the writ petition or in the arguments by counsel for the petitioner that the bank delayed the same. It is a mere version without any evidence to support the said fact which cannot be accepted. If there was delay on the part of the Bank then it ought to have made the Bank know about it. The bank is an agent of the petitioner and if the bank is at fault and no evidence has been brought on record by way of representation or otherwise to the Bank, then the respondents cannot be faulted with.

9. The second ground is also of no substance for the reason that on one hand, the petitioner says that they were busy in various International Trade Fairs and obviously insofar as the present claim is concerned, it appears that they were not bothered at all or interested in obtaining the benefit which was due to them and for the lapses on the part of the petitioner itself, no one else can be blamed about it. It is true that the Honble Apex Court, time and again, has expressed that the matters/claims ought not to be disbelieved/disallowed on account of delay and invariably, the delay deserves to be condoned but in the instant case, in our view, the petitioner has been unable to come out with cogent reasons by which the delay can be said to be condoned and the revisional authority had rightly not accepted the issue relating to condonation.

10. The present petition can also be dismissed on one more aspect that the revisional authority decided the revision on 15-12-2009 and no good reason has been assigned even during the course of arguments as to why the present writ petition came to be filed on 22-3-2013 i.e. almost more than 4 years since the order came to be passed by the revisional authority. We are also not satisfied with the arguments of counsel for the petitioner that they were pursuing with representation/review before the revisional authority and waiting for its result, inasmuch as counsel submitted that the review application/representation, which was moved by the petitioner, time and again, was ultimately rejected on 26-12-2012 and therefore, they were under bona fide belief that once the action is taken by the revisional authority on the review/representation, then thereafter appropriate remedy could be availed as they were quite confident that the delay ought to have been condoned. However, we are not impressed by the arguments of counsel as even otherwise, it is observed by the revisional authority while rejecting review/representation on 26-12-2013 observes that the representation was moved by the petitioner on 14-2-2011 i.e. after waiting for more than 14 months of the impugned order (dated 15-12-2009) having been passed. We have also perused the so-called review/representation dated 14-2-2011 (Ann. 9) but not a single word has been stated in the said application by using word "review" or even "representation" and nothing has been pointed out to the revisional authority as to what was mistake or flaw in the impugned order dated 15-12-2009. Therefore, in our view, the writ petition also cannot be accepted on account of delay and for this reason also, the present writ petition has no force. There is no plausible explanation put forth in the writ petition or in the arguments of the counsel on account of unexplained delay and laches. The judgments, relied upon by counsel for the petitioner, referred to supra, do not help the petitioner as the petitioner has been unable to justify with cogent reasons about the abnormal delay in filing the supplementary claims and in our view, no good reason has been assigned by which the delay could have been condoned.

11. The Honble Apex Court in its latest judgment rendered in the case of Amlendu Kumar Bera and Others Vs. The State of West Bengal, observed as under:-

"Curiously enough in the application for condonation of delay no sufficient cause has been shown which would entitle the Respondent to get a favorable order for condonation of delay. True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there is serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection u/s 47 till the decree holder puts the decree in execution. As noticed above, the decree passed in the year 1967 was in respect of declaration of title and permanent injunction restraining the respondent State from interfering with the possession of the suit property of the appellant-plaintiff. It is evident that when the State tried to interfere with possession the decree holder had no alternative but to levy the execution case for execution of the decree with regard to interference with possession. In our opinion their delay in filing the execution case cannot be a ground to condone the delay in filing the revision against the order refusing to entertain objection u/s 47 CPC. This aspect of the matter has not been considered by the High Court while deciding the petition for condoning the delay. Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in the absence of sufficient cause delay shall not be condoned."

12. Honble Apex Court in the case of R.B. Ramlingam Vs. R.B. Bhvaneswari, has held as under:-

"On the question as to whether the prosecution of a Review Application would be a sufficient cause for not filing the SLP in time for the purposes of Section 5 of the Limitation Act, 1963 we are of the view that there is a dichotomy between the appellate jurisdiction of this Court and discretionary jurisdiction under Article 136 of the Constitution (See: Kunhayammed and Others Vs. State of Kerala and Another, Reading the said judgment, it also becomes clear that filing of Review Petition is no impediment to the filing of the special leave petition. Large number of judgments were cited before us by learned Counsel. It is not necessary at this stage to discuss each and every judgment cited before us for the simple reason that Section 5 of the Limitation Act, 1963 does not lay down any standard or objective test. The test of "sufficient cause" is purely an individualistic test. It is not an objective test. Therefore, no two cases can be treated alike. The statute of limitation has left the concept of "sufficient cause" delightfully undefined, thereby leaving to the Court a well-intentioned discretion to decide the individual cases whether circumstances exist establishing sufficient cause. There are no categories of sufficient cause. The categories of sufficient cause are never exhausted. Each case spells out a unique experience to be dealt with by the Court as such.

For the aforestated reasons, we hold that in each and every case the Court has to examine whether delay in filing the SLP stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. In exercise of discretion under Article 136 to decide whether delay should be condoned or not, this Court is not bound by considerations applicable to an Appellate Court but nonetheless general principles which would weigh with the Appellate Court in determining sufficient cause can be the guiding factor/guideline. Therefore, it cannot be stated as a proposition per se that the prosecution of Review Proceedings would not be a sufficient cause at all for purposes of Section 5 of the Limitation Act, 1963."

13. Therefore, in the light of the said judgment of the Honble Apex Court, pendency of a review petition though can be a sufficient cause for the purposes of Sec. 5 of the Limitation Act or for condoning the delay, but when we see the facts of the instant case, then it is quite clear that while the revision was disposed of by the Revisional Authority on 15-12-2009 but the so-called application itself was moved on 14-2-2011 i.e. almost after 14 months of passing of the revisional order on 15-12-2009 and on perusal of the said application, referred to supra, it even does not mention that the petitioner is moving an application for review/reconsideration/rectification and merely states application which even otherwise cannot be said to be an application for review. This has been highlighted only to show that there has been delay and laches on the part of the petitioner.

14. Honble Apex Court, in the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, has held as under:-

"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, (L.A.), v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil."

15. When we peruse the facts of the instant case, it goes to show that even before the adjudicating authority, as observed hereinabove, there was no reasonable cause which could justify condoning the delay and the reasons, which have been made out, have been found to be unjust and improper.

16. In view of what has been observed above, we find no apparent error, illegality or perversity in the orders impugned so as to call for interference by this Court. Consequently, the writ petition, being devoid of any merits, is hereby dismissed in limine.