Judgment :- The writ petition is filed seeking for the relief of issuance of writ of certiorarified mandamus to call for the records pertaining to the Order No.332/2005 dated 211. 2005 issued by the first respondent and quash the same as illegal by taking cognizance of the Boards circular No.41/2005 Cus dated 210. 2005 issued in this respect and direct the third respondent to condone the 2 days delay in filing with respect to 2 shipping bill Nos.18 dated 5. 2003 and 46 dated 5. 2005 and 4 days delay in filing in respect of shipping bill No.1538 dated 5. 2003. 2. The petitioner company imported the raw materials "celcon" used in the manufacture of bobbins under DEPB scheme vide bill of entry No.4796260 dated 4. 2003 and paid basic customs duty, additional customs duty and special additional duty by way of debiting the DEPB licence vide shipping bill bearing Nos.18 dated 5. 2003, 46 dated 5. 2003, 1538 dated 5. 2003 and 226 dated 15. 2003. The petitioner company applied for fixing of brand rates for the bobbin holders under Rule 6 of the Customs and Central Excise Duty Drawback Rules, 1995. The second respondent rejected the application stating that three out of four shipping bills were time barred and for the shipping bill that was presented in time, rule 6 cannot be applied since the import duty was paid not in cash but by debiting the DEPB. The petitioner was further directed to approach the Government to get the delay condoned if they are so advised. Not satisfied with the order of the second respondent – Deputy Commissioner of Customs, the petitioner filed an appeal before the Commissioner (Appeals) and the appeal was rejected by order in appeal No.3 of 2005 Customs dated 5. 2005. That order was taken in revision by the petitioner before the Ministry of Finance, Government of India, which also confirmed the order of the authorities below by its proceedings dated 13. 2005. The correctness of the same is now put in issue in this writ petition. 3. I heard the argument of the learned counsel on either side and perused the materials on record. 4. Rule 6 of the Customs and Central Excise Duties Drawback Rules, 1995 reads thus: "6. Cases where amount of rate of drawback has not been determined: 1. The correctness of the same is now put in issue in this writ petition. 3. I heard the argument of the learned counsel on either side and perused the materials on record. 4. Rule 6 of the Customs and Central Excise Duties Drawback Rules, 1995 reads thus: "6. Cases where amount of rate of drawback has not been determined: 1. (a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer of exporter of such goods may, within 60 days from the date relevant for applicability of the amount or rate of drawback in terms of sub rule (3) of rule 5, apply in writing to the Central Government for the determination of the amount of rate of drawback therefore stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such materials or components: Provided that the Central Government may, if it is satisfied that the manufacturer or exporter was prevented by sufficient cause from filling the application within the aforesaid time allow such manufacturer or exporter to file such application within a further period of thirty days. ...." 5. Admittedly, in respect of three bill of entries, the claim has been made by the petitioner beyond the period prescribed under the statute. Even the suggestion made by the second respondent - Deputy Commissioner of Customs directing the petitioner to approach the Government, which is the competent authority to condone the delay, has not been accepted by the petitioner or proceeded with to approach the Government for condoning the delay. It is well settled that the authorities under the Act are bound by the statutory provisions and they cannot have any power to extend the period of limitation prescribed under the statute. However, Rule 6 specifically empowers the Central Government, which is also indicated by the second respondent - Deputy Commissioner of Customs in his order. In spite of such indication, the petitioner has not availed that opportunity. Hence, the order in respect of the first three bill of entries, which have been filed beyond the period prescribed under Rule 6 of Customs and Central Excise Duties Drawback Rules, 1995, as belated, cannot be held to be illegal. 6. In spite of such indication, the petitioner has not availed that opportunity. Hence, the order in respect of the first three bill of entries, which have been filed beyond the period prescribed under Rule 6 of Customs and Central Excise Duties Drawback Rules, 1995, as belated, cannot be held to be illegal. 6. In respect of last of the shipping bill, it was found by the Deputy Commissioner that the petitioner imported the raw materials under the bill of entry No.479260 dated 4. 2003. It could be seen from the bill of entry that a debit in DEPB credit was made towards duty of the goods imported. It is also an admitted fact that the petitioner has not paid any amount towards duty and he has availed only the credit facility under DEPB scheme. As per Rule 3 proviso 2 of sub-rule 1, draw back cannot be paid if the goods were manufactured out of imported raw material in respect of which duties have not been paid. In the instant case, the importer has made only adjustments in DEPB credit and has not paid the duty in cash. 7. Learned counsel for the petitioner relied on a circular No.3/99 Customs dated 2. 1999 to contend that though originally such payment through DEPB cannot be regarded as a payment by cash and as such not entitled to draw back. Subsequently, by means of another Circular No.41 of 2005 dated 210. 2005, the Government of India, Ministry of Finance, has clarified the matter to the effect that even if payment made under DEPB, benefit of draw back would be available. He contended that the Circular No.41 of 2005 has to be read and treated as a clarificatary in nature and it has to be given effect to from the original date of 2. 1999. 8. In order to appreciate the contention raised by the learned counsel for the petitioner, both the circulars are extracted here. Circular No.3/99-Customs dated 2. 1999 reads thus: "Government of India Ministry of Finance (Department of Revenue) New Delhi It has been referred by certain Commissioners of Central Excise that certain exporters desire to avail of drawback simultaneously with DEPB Scheme. 2. Circular No.3/99-Customs dated 2. 1999 reads thus: "Government of India Ministry of Finance (Department of Revenue) New Delhi It has been referred by certain Commissioners of Central Excise that certain exporters desire to avail of drawback simultaneously with DEPB Scheme. 2. The related issues have been examined and by way of abundant precaution the position is being clarified as under: .(i) Simultaneous availment of DEPB and Drawback is permitted only in situations covered by our Circular No.68/97-Cus., dated 12. 1997. .(ii) To dispel all doubts in the field it needs to be reiterated that Brand rate of drawback is admissible only against cash payment of duties, as is already laid down under proviso .(ii) of Rule 3 of the Customs & Central Excise Duties Drawback Rules, 1995. A debit of duties payable under DEPB Scheme/Pass Book Scheme on import of goods is in effect availment of exemption of duty under the Customs Act. Being operated through an Exemption Notification, such debit does not constitute payment of duties. Therefore no drawback is admissible against debit of duties made in a DEPB Book or in a Pass Book issued under the erstwhile Pass Book Scheme." Circular No.41 of 2005 Customs dated 210. 2005 is extracted here: "Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject: Eligibility of brand rate of duty drawback where inputs used in the manufacture of export products are imported availing of DEPB - Clarification - Regarding. The undersigned is directed to invite your attention on the above mentioned subject and to state that an issue has been raised as to whether additional customs duty paid through debit under DEPB can be allowed as brand rate of duty drawback. 2. The matter has been examined by the Board. Hitherto, the additional customs duty paid in cash only was adjusted as CENVAT credit or duty drawback while the same paid through debit under DEPB was not allowed as duty drawback. In the Foreign Trade Policy 2004-2009, which came into force w.e.f. 9. 2004, it has been provided under Paragraph 3. 5 that the additional customs duty/excise duty paid in cash or through debit under DEPB shall be adjusted as CENVAT credit or Duty Drawback as per the rules framed by the Department of Revenue. In the Foreign Trade Policy 2004-2009, which came into force w.e.f. 9. 2004, it has been provided under Paragraph 3. 5 that the additional customs duty/excise duty paid in cash or through debit under DEPB shall be adjusted as CENVAT credit or Duty Drawback as per the rules framed by the Department of Revenue. Taking note of this change, it has been decided that the additional customs duty paid through debit under DEPB shall also be allowed as brand rate of duty drawback. 3. Accordingly, the instructions contained in Circular No.3/99-Cus., dated 2. 1999 stand modified. 4. A suitable Public Notice and Standing Order may be issued for the guidance of the trade and staff. Difficulties faced, if any, in implementation of the Circular may be brought to the notice of the Board at an early date. Receipt of the Circular may kindly be acknowledged." 9. The circular must be construed with reference to the language used therein and in the light of the earlier circular and object thereof. The Circular is issued with a view to confer a benefit which had not been conferred before. That does not necessarily imply that the amendment is to be given retrospective effect even without an indication therein to that effect. Every case of removal of hardship by means of a circular does not mean that the intention of the Circular maker was to remove the hardship from an anterior date unless the context in which the amendment was made and the language of the circular warrant such a view. When a thing which was specifically excluded is subsequently included such inclusion cannot be regarded as indicative of an intention on the part of the Legislature to have treated what is now included as having been included at all times. One possible way of testing whether the amending circular is merely declaratory or is substantive and is therefore prospective is to examine the original circular with a view to ascertain whether that original circular without the aid of the amending circular is capable of taking within it what was subsequently included after the amending circular. In this case, the earlier circular No.3/99-Customs dated 03.02.1999 is very categorical in its terms that no drawback is admissible against the debit of dues made in DEPB or in the passbook issued under the earlier passbook scheme. In this case, the earlier circular No.3/99-Customs dated 03.02.1999 is very categorical in its terms that no drawback is admissible against the debit of dues made in DEPB or in the passbook issued under the earlier passbook scheme. However, by means of the subsequent circular No.41 of 2005 dated 210. 2005 after examining the fact that hitherto the additional customs duty paid in cash only was adjusted as duty drawback while the same paid through debit under DEPB was not allowed as duty drawback and taking note of the foreign trade policy 2004-2009, which came into force w.e.f. 01.09.2004, which provided that additional customs duty and excise duty paid in cash or through debit under DEPB shall be adjusted as CENVAT credit or Duty Drawback as per the rules framed by the Department of Revenue and taking note of this change, it has been decided that the additional customs duty paid through debit under DEPB shall also be allowed as brand rate of duty drawback. Accordingly, the instructions contained in Circular No.3of 1999 dated 03.02.1999 stood modified. From that it is clear that the modification takes effect only after the date of circular No.41 of 2005 dated 210. 2005 and not from the date on which the earlier circular was issued, i.e., 03.02.1999. Useful reference can be had to the judgments of this Court in the case of CWT v. Varadharaja Theatres Pvt. Ltd., (2001) 250 ITR 523 and CIT v Pooshya Exports Ltd., (2006) 262 ITR 417. Therefore, in the absence of any positive or implied indication to the effect that Circular No.41 of 2005 dated 210. 2005 is clarificatory and is retrospective in operation from the date of issuance of the earlier circular No.3 of 1999, I am not able to countenance the argument of the learned counsel for the petitioner to treat the Circular No.41 of 2005 dated 210. 2005 as clarificatory and having effect of retrospective ness in nature, which dates back to 03.02.1999. 10. Therefore, I do not find any merit in the writ petition and the writ petition is dismissed. No costs.