Judgment :- The Order of the Court is as follows :- This Writ Petition coming on for hearing on Tuesday the Twenty Seventh day of July, 1999 upon perusing the petition and the affidavit filed in support thereof the order of the High Court, dated 24-11-1993 and made herein and the Counter and Reply affidavits filed herein and the records relating to the order in 539/25/88 Ex. Gr., dated 12-10-1991. On the file of third respondent comprised in the return of respondents to the Writ made by the High Court, and upon hearing the arguments of Ms. L. Maithili, Advocate, for the petitioner, and of Mr. S. Venkatesh, Additional Central Government Standing Counsel on behalf of the respondents and having stood over for consideration till this day, the Court made the following Order : Invoking Art. 226 of the Constitution of India, the petitioner herein has filed the present writ petition seeking for a Writ of Mandamus to call for the records of the third respondent culminating in his Order No. 539/25/88 Ex. Gr., dated 12-10-1991 and to quash the same and to direct the respondents to refund a sum of Rs. 4, 39, 360.56 claimed as Drawback. 2.In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this court to allow the writ petition as prayed for, Per Contra, though no counter-affidavit has been filed the learned Additional Central Government Standing Counsel appearing for the respondents argued the matter and requested this Court to dismiss the writ petition for want of merits. 3. Heard the arguments advanced by the learned Counsel appearing for the respective parties. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the learned Counsel appearing for the respective parties during the course of their arguments. 4. In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to allow this writ petition or not. 5. I have also taken into consideration the various points raised by the learned Counsel appearing for the respective parties during the course of their arguments. 4. In the above facts and circumstances of the case, the only point that arises for consideration is, as to whether there are any valid grounds to allow this writ petition or not. 5. The brief facts of the case of the petitioner as seen from the affidavit are as follows: The petitioner is a private limited company having its registered office at Hyderabad. The petitioner established a small-scale unit in the year 1984 with intention of producing steel and alloy castings and for this purpose intended to set up a unit. With this object in view the petitioner placed an order on 2-12-1983 for one No. 350 KW Induction and one No. work station with spares to be imported from M/s. TOCCO. Inc., USA. The other matching equipment was ordered to be supplied indigenously by Toshniwal, to form an Induction Furnace. The petitioner obtained Import Licence for the said equipment and opened Letter of Credit on TOCCO. The machine was released from customs on 18-10-1984 and brought to Hyderabad on 21-10-1984, when the Factory shed was under construction. The construction was over by March, 1985 and the H.T. Power was connected on 6-4-1985. M/s. Toshniwals started and testing of the equipment in April, 1985 and around 20th tried to start the equipment but due to failure of SCRS, they could not commission the equipment. Immediately the petitioner contacted M/s. TOCCO, USA by telephone and telex. Since then M/s. Toshniwal continued to check the equipment under telex-telephone instructions from the principals but could not succeed in commissioning the equipment. After long efforts they could manage to bring Mr. Kenmoreland, a Senior Engineer from TOCCO around 24/25th July, 1985. During his stay, he could somehow make the 1000 lbs furnace start and take about 20 melts, but however he was not able to succeed in starting the other two furnaces at all and finally left India helpless. The one furnace which just started on trial during the stay of Mr. Moreland did not also start later. Since then the petitioner had made several attempts pleading both M/s. Toshniwals and M/s. TOCCO to put the equipment operative but to no avail. The one furnace which just started on trial during the stay of Mr. Moreland did not also start later. Since then the petitioner had made several attempts pleading both M/s. Toshniwals and M/s. TOCCO to put the equipment operative but to no avail. Since the equipment could not be started for production and as the HT power Bills at minimum also were mounting up to lacs of rupees, which could not be paid by the Company, the power supply was disconnected in September, 1985. Since there was no proper response or attendance from either principals or their agents, and as the warranty period for the equipment was also going to expire, the petitioner decided to serve legal notices and accordingly served the legal notices claiming the total losses incurred due to the faulty equipment. In January, 1986, there was a telex from TOCCO offering to take back the equipment and pay the cost collected from the petitioner. But at that time the petitioner was only interested in bringing the equipment into operation. In February, 1986, M/s. TOCCO sent a telex informing that the furnaces need substantial modification to be put into operation involving huge amount to expenditure and strains. The Company even at this time opted for putting the equipment into operation even if it was at some additional cost. M/s. Toshniwal's time and again tried their best under their principals guidance and failed to locate where the mistake was M/s. A.P. State Financial Corporation, who had financed the equipment and other assets were also seriously seized of the situation since the petitioner was not able to go into production even after 18 months of the receipt of the major machinery. They had written several letters to M/s. Toshniwals from time to time requesting them to set the complaint right. They had even threatened to deregister their name from their suppliers list and advised them to take back the equipment and pay the costs losses incurred. Due to all these pressures, in 1st week of July. The Chairman, K.C. Toshniwals of M/s. Toshniwals along with their other Directors came for discussions with the petitioner as to how to resolve the issue. Due to all these pressures, in 1st week of July. The Chairman, K.C. Toshniwals of M/s. Toshniwals along with their other Directors came for discussions with the petitioner as to how to resolve the issue. In the meeting the petitioner finally made it clear that either the equipment supplied both by themselves and their principals M/s. TOCCO, USA should be put into operation successfully or to take back the entire equipment and pay the costs and losses incurred. In the meeting he somehow agreed to take back his machinery and pay the amount originally paid as they were not able to commission the equipment at all. After strenuous efforts, finally Mr. Ronald Akers, the President and General Manager of TOCCO visited Sonali Steels & Alloys (P) Ltd., and after series of discussions with the petitioner and Toshniwals, he signed a Memo of understanding on 31-3-1988 that M/s. Toshniwals will take back the entire equipment and pay the petitioner as per the agreed amounts. The detailed settlement Agreement was signed and executed by all the three parties on 23-8-1988. Thereafter the petitioner approached RBI for granting them permission and GR approval for re-export of the imported machinery. The Customs inspection of the packages was completed by 31-12-1988 and the consignment was booked by Robert E. Lee on 20-1-1989. M/s. Toshniwals also have paid the full agreed amount and taken back their equipment. Thus according to the petitioners the said equipment was never used and after trial runs stage the equipment failed to perform and in view of the failure of the equipment and in view of the fact that the Americal supplier agreed to take back the equipment after re-export of the equipment, the petitioner filed a claim for drawback of the Customs duty paid on the equipment through the second respondent on 31-12-1988. The petitioner subsequently also addressed a letter dated 16-2-1989 to the Chairman of the Central Board of Excise and Customs, the second respondent herein requesting the Board to condone the delay under Section 74 and grant drawback of 98% of the Customs Duty paid on the import of goods which were re-exported. The proviso relating to claim for drawback are governed by Chapter X of the Customs Act containing Sections 74 to 76. The proviso relating to claim for drawback are governed by Chapter X of the Customs Act containing Sections 74 to 76. In accordance with the above section, the claim for drawback of 98% of the Customs Duty paid should have been made within 2 years from the date of payment of duty on the importation of the goods, namely 18-10-1984. But in view of the circumstances as set forth above, the petitioner was able to claim the drawback only on 31-12-1988, due to factors totally beyond his control. The petitioner's claim for drawback is therefore covered by proviso to Section 74. The petitioner approached the Ministry of Finance and also the Chairman, Central Board of Excise and Customs for relaxation of the 2 years period of reciting of the history of the case for the purpose of grant of the drawback in terms of proviso to Section 74(1). The petitioner has now received an Order No. 539/25/88, dated 12-10-1991 stating that the petitioner's request for condonation of delay has been rejected by the Ministry and the claim has been rejected as inadmissible in view of the delay in re-export. No other reasons have been given in order. Hence this writ petition. 6. It is contended by the petitioners that the impugned order is violative of principles of natural justice and is arbitrary, illegal and capricious and does not disclose any reason except the Ministry's rejection for rejecting the drawback claim of the petitioner that the discretion vested under proviso to Section 74 is not whimsical or arbitrary decision and that the proviso states that where in any particular case sufficient cause is shown, the time limit for re-export within 2 years from the date of payment of duty on the importation thereof may be extended by the Board by such further period as it may deem fit. Relying on the above it is contended by the petitioner that the petitioner has given exhaustive reasons and has shown more than sufficient cause as stated supra to establish that the re-export was delayed not due to any fault of the petitioner. Relying on the above it is contended by the petitioner that the petitioner has given exhaustive reasons and has shown more than sufficient cause as stated supra to establish that the re-export was delayed not due to any fault of the petitioner. Therefore, it is the strong case of the petitioner that the petitioner has tried its best to make the equipment work but to no avail and when the reasons for non-export within 2 years has been made and sufficient cause has been shown to the respondent for the delay in re-export, the respondents ought to have exercised their discretion in a judicious manner and not in arbitrary fashion as has been done in this case. Inter alia it is also contended by the petitioners that the respondents failed to consider and take into account the object of Section 74. According to them under Section 12 of the Customs Act, Customs Duty is to be paid on goods imported into India. Section 74 enables an Importer to claim 98% of this duty amount if he re-exports the same subject to certain terms and conditions. It is also contended by them that so long as the Importer re-exports the equipment without using it within 2 years as a matter of right entitled to drawback and this two year limitation is subject to relaxation by the second respondent in case where an importer can establish that the re-export could not be done within 2 years due to sufficient causes. Therefore, it is specific case of the petitioner that so long as the imported machine, on which duty had been paid is re-exported without using the same, the importer is entitled to drawback as long as the importer can show sufficient cause for not re-exporting the equipment within two years. 7. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims made by the rival parties, the only grievance of the petitioner herein is that the respondents herein have arbitrarily rejected their claim of drawback. 7. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter claims made by the rival parties, the only grievance of the petitioner herein is that the respondents herein have arbitrarily rejected their claim of drawback. In this case it is no doubt true that the equipment in question herein was never used and after trial runs stage the equipment failed to perform and in view of the failure of the equipment and in view of the fact that the Americal supplied agreed to take back the equipment after re-export of the equipment, the petitioner filed a claim for drawback of the Customs Duty paid on the equipment through the second respondent on 31-12-1988. The petitioner subsequently also addressed a letter dated 16-2-1989 to the 2nd respondent requesting the Board to condone the delay under Section 74 and grant drawback of 98% of the customs duty paid on the import of the goods which were re-exported. It is also admitted fact that the parties are eligible to the grant of drawback provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further periods as it may deem fit.Therefore from the above it is very clear that the claim for drawback of 98% of the Customs Duty paid should have been made within 2 years from the date of payment of duty on the importation of the goods. In this case that is 18-10-1984. But in this case it is admitted that in view of the circumstances of this case, the petitioner was able to claim the drawback only on 31-12-1988. However, it is claimed by them that the same was due to factors totally beyond his control. Therefore, it is contended by the petitioner that the petitioner has given exhaustive reasons and has shown more than sufficient cause as stated in the writ to establish that the re-export was delayed not due to any fault of the petitioner and also that sufficient cause has been shown to the respondents for the delay in re-export. Condoning delay in this case is purely discretionary power of the respondents and exercising that discretion the respondents have rejected the claim of the petitioner by way of the order impugned in this writ petition. Condoning delay in this case is purely discretionary power of the respondents and exercising that discretion the respondents have rejected the claim of the petitioner by way of the order impugned in this writ petition. The said order is under challenge in this writ petition. It is the categoric contention of the petitioners that as they have shown sufficient cause for non-exporting the equipment within the period of two years and the delay was due to factors totally beyond their control and that would amount to sufficient cause and that therefore the respondents ought to have condoned the delay and granted the drawback. Such contention of the petitioners cannot be accepted. It is for the authority who is exercising the discretionary power to satisfy whether the delay can be condoned or not. It cannot be said that he has acted arbitrarily if he does not condone the delay. It is the categoric case of the petitioner that they have sufficient cause for condoning the delay and the delay was due to factors totally beyond their control. But it is significant to note even from the averments in the affidavit that even in the year 1986 in January there was a telex from TOCCO offering to take back the equipment and pay the cost collected from the petitoner. But at that time, the petitioner was only interested in bringing the equipment into operation. Even therafter in February, 1986, the then President and General Manager of TOCCO sent a telex informing that the furnaces need substantial modification to be put into operation involving huge amount to expenditure and strains. Even then the company at that time also opted for putting the equipment into operation even if it was at some additional cost. Thus it is crystal clear that even in the year 1986 the manufacturers of the machinery M/s TOCCO lost hope in the said machinery and were ready to take back the same. In February, 1986 they have clearly informed the petitioner about the fate of the machinery in the following terms : "the furnaces need substantial modification to be put into operation involving huge amount to...........expenditure and strains." Even after all these things the company opted to put the equipment into operation even if it was at some additional cost. In February, 1986 they have clearly informed the petitioner about the fate of the machinery in the following terms : "the furnaces need substantial modification to be put into operation involving huge amount to...........expenditure and strains." Even after all these things the company opted to put the equipment into operation even if it was at some additional cost. Therefore from the above it is very clear that the delay was only due to the petitioner and the same was well within their control. They could have re-exported the same even in the year 1986 when the manufacturers have clearly declared the position of the machinery. Therefore, there is no meaning in now contending that the delay was only due to factors totally beyond their control. Therefore in this case there is no sufficient cause for condoning the delay and that therefore in the respondents have rightly rejected the claim of the petitioner by exercising their discretionary power. Therefore the various contentions raised by the petitioner challenging the impugned order cannot at all be accepted. 8Further it is also contended by the learned Counsel . appearing for the respondents that there are appellate and revisionary remedies available to the petitioner against the impugned order. But without exhausting the same, they have rushed to this court. I see force in this contention also. Because in the impugned order itself it has been clearly noted as follows under Note No. 2 : "An appeal against this order lies to the appellate Collector of Customs, Madras within three months from the date of communication of this order". However, in this regard it is contended by the petitioner that since the rejection has come from the first respondent, no useful purpose will be served by filing an Appeal to the Collector (Appeals) against the order of the first and second respondents. That contention cannot be accepted. It is not for the petitioner to forecast the result of any appeal, when admittedly there is an appellate remedy. They cannot be allowed to bye-pass the available statutory remedies. Therefore I see merit in the contention made by the learned Counsel for the respondents in this regard.9. That contention cannot be accepted. It is not for the petitioner to forecast the result of any appeal, when admittedly there is an appellate remedy. They cannot be allowed to bye-pass the available statutory remedies. Therefore I see merit in the contention made by the learned Counsel for the respondents in this regard.9. Therefore, for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of this case, I am of the clear view that the petitioner herein has failed to make out any case in their favour and that therefore there is no need for any interference with the order impugned in this writ petition. Thus the writ petition fails and the same is liable to be dismissed for want of merits. 10. In the result, the writ petition is dismissed. No costs.