TMI Blog2023 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... CAL ) Shri Pradeep Korde , Advocate , for the Appellant Shri P. K. Acharya , Superintendent , Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. NSKEXCUS- 000-APPL-78-19-20 dated 26.06.2019 passed by the Commissioner of Central Excise (Appeals), Nashik. By the impugned order, Commissioner (Appeals) has upheld the order passed by the original authority rejecting the appeal filed by the appellant. 2.1 Appellant has filed a refund claim stating that they had exported certain goods against which they claimed rebate. Subsequently these goods were reimported as the same were rejected by their custom overseas. At the time of reimportation, as directed by Range Superintendent they have paid back the rebate claimed by them by reversal vide Cenvat entry No. 1101 to 1112 dated 24.08.2015. Subsequently on becoming aware that such reversal was not warranted, they filed a rebate claim which was registered in the division office under entry No.06- 02/2018-19 dated 14.06.2018. The refund claim has been rejected by the adjudicating authority as filed beyond the period of limitation and by the impugned order, Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed below: (B) relevant date means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) If the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid: (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory: (d) in a case where a manufacturer is required to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that the provision may have been invoked, but the claim for refund should be considered by not applying the Rule of Limitation prescribed therein. As has been held by the Hon'ble Supreme court in numerous cases and decisions that the Rule of Limitation is provided in order to uphold a larger public interest. The statutes and Rules of limitation are statutes and prescriptions of repose and peace. They give finality to certain proceedings and orders In view of the above judgment there is no scope for reconsidering the same grounds in instant case, when the case has decided by the lower authority within the ambit of Section 11B of the Act, ibid. 5.5 Considering the issues involved, it is thus clear that the appellant themselves purportedly on directions of the Range officer made the debit entries in the Cenvat account, have not been able to substantiate even an inkling of any protest or demur even after passing of two and half years of the event. They have not made any effort to find out the authenticity of the debit made by them, which definitely would have come under the scanner of their statutory auditor. The appellant has not put forth any explanation as to how s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of goods Thus, the relevant date is relatable to the goods exported. Therefore, the application for rebate of duty shall be governed by Section 11B of the Act and therefore shall have to be made before the expiry of one year from the relevant date and in such form and manner as may be prescribed. The form and manner are prescribed in the notification dated 6.9.2004. Merely because in Rule 18 of the 2002 Rules, which is an enabling provision for grant of rebate of duty, there is no reference to Section 11B of the Act and/or in the notification dated 6.9.2004 issued in exercise of powers conferred by Rule 18, there is no reference to the applicability of Section 11B of the Act, it cannot be said that the provision contained in the parent statute, namely, Section 11B of the Act shall not be applicable, which otherwise as observed hereinabove shall be applicable in respect of the claim of rebate of duty. 10. At this stage, it is to be noted that Section 11B of the Act is a substantive provision in the parent statute and Rule 18 of the 2002 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the applicability of Section 11B of the Act, it cannot be said that the parent statute - Section 11B of the Act shall not be applicable at all, which otherwise as observed hereinabove shall be applicable with respect to rebate of duty claim. 12. As such, the issue involved in the present appeal is squarely covered by the decision of this Court in the cases of Mafatlal Industries Ltd. (supra) and Uttam Steel Limited (supra). After taking into consideration Section 11B of the Act and the notification and procedure under Rule 12, it is specifically observed and held that rebate of duty of excise on excisable goods exported out of India would be covered under Section 11B of the Act. After referring to the decision of this Court in the case of Mafatlal Industries Ltd. (supra), it is further observed in the case of Uttam Steel Limited (supra) that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. On the argument based on Rule 12, this Court has specifically observed that such argument has to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. The aforesaid obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the limitation prescribed under Section 11B of the Act with respect to rebate of excise duty. In the said decision, it is specifically observed that since statutory provision for refund in Section 11B ibid brings within its purview, a rebate of excise duty, Rule 18 of the 2002 Rules cannot be read independent of requirement of limitation prescribed in Section 11B. Before the Bombay High Court, the decision of the Madras High Court in the case of Dorcas Market Makers Pvt. Ltd. (supra), which is relied upon on behalf of the appellant was also pressed into service by the assessee. However, the Bombay High Court did not agree with the said decision. The Bombay High Court also distinguished the decision of this Court in the case of Raghuvar (India) Ltd. (supra). In paragraphs 7 to 10, it is observed and held as under : 7. Counsel appearing on behalf of the petitioner sought to place reliance on a decision of the Supreme Court in Collector of Central Excise v. Raghuvar (India) Ltd. - (2000) 5 SCC 299. The issue which fell for determination before the Supreme Court, inter alia, was whether action for the recovery of MODVAT credit wrongly availed of or utilised in an irregular ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inctive, in the sense that Section 11B specifically comprehends an application for rebate of excise duty on goods exported or materials used in their manufacture. 9. A judgment of the Madras High Court in Dorcas Market Makers Private Limited, Chennai v. CIT (Appeals), 2012 (281) E.L.T. 227 (Mad.) was sought to be relied upon to submit that Section 11B of the Central Excise Act would not operate in respect of an application under Rule 18 of the Central Excise Rules, 2002. The learned Single Judge of the Madras High Court held that when a statutory Notification which was issued under Rule 18 does not prescribe any time limit, Section 11B would not be attracted. With respect, the learned Single Judge of the Madras High Court has not had due regard to the specific provision of Explanation (A) to Section 11B of the Act under which the expression refund is defined to include rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of such goods. The judgment of the Supreme Court in Raghuvar which has been relied upon by the learned Single Judge of the Madras High Court has already been considered hereinabove. 10. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise shall compare the duplicate copy of the application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. The provisions of the Notification thus make it abundantly clear that a mere submission of the ARE-1 form does not constitute the presentation of a claim for rebate of Central Excise. Form ARE-1 in turn has various parts including Part A which deals with the certification by Central Excise Officer, Part B which deals with certification by the Officer of Customs and Part D which is the actual Rebate Sanction Order. Moreover, it would be necessary to take note of the fact that under Section 11BB of the Act, interest is liable to be paid if any duty which is ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of Section 11B. For the purpose of Section 11BB, presentation of the application is the relevant date from which the period of three months ..... X X X X Extracts X X X X X X X X Extracts X X X X
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