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2021 (4) TMI 1135 - HC - Central ExciseRebate of central excise duty - time limitation - Rule 18 of the Central Excise Rules, 2002 - case of petitioner is that his is a case of return of pre-deposit and of the Central Excise duty paid by the petitioner on any excisable goods and for such return of pre-deposit the petitioner is not required to file any formal refund claim under section 11B of the Central Excise Act - HELD THAT:- This Court, at length, considered section 11B of the Act to hold that the person claiming refund of excise duty and interest, has to make an application for refund of such duty and interest to the authority enumerated therein before the expiry of one year from the relevant date in such form and manner as may be prescribed - The relevant date is defined in Explanation (A) and Explanation (B). The date on which the Tribunal allowed the appeal preferred by the petitioner which in the case before the High Court was 07.08.2007 and hence, therefore, within one year from the date of allowing the appeal by the Tribunal, the petitioner needed to prefer the claim for refund of excise duty in a prescribed form. The Court held that the payment made by the petitioner was towards the excise duty without protest and that can never be considered as pre-deposit. If any payment is made as the pre-condition for exercise of the statutory right, it can be termed as pre-deposit. However, it cannot be equated with voluntary deposit of excise duty paid even during the course of investigation and prior to show cause notice or adjudication, to assert that it is pre-deposit of payment of duty, which was intended to prevent the incidence of interest and liability accruing from the non-payment of duty and, hence, it cannot be termed as deposit. The Court held that payment made by the petitioner towards excise duty can never partake the character of pre-deposit, as mentioned in section 35F of the Act. Therefore, contention that the amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits needed to be rejected. In the instant case, in view of the well settled position of law that the procedural requirement cannot defeat the substantial right of the party ,as in absence of shipping bill, insistence on the shipment certificate was inevitable. Therefore, obtaining of the shipment certificate was the very fundamental requirement on the part of the petitioner. Soon after getting the copy of the shipment certificate, it has chosen to file the rebate claim with all requisite documents and, therefore, the same ought not to have been rejected on the ground of limitation. The view adopted by the Revisional Authority of the department of being bound by the period of limitation, despite there being a specific provision of paragraph No.2.4 of the CBEC Manual, which is a circumstance as held by the Court in COSMONAUT CHEMICALS VERSUS UNION OF INDIA [2008 (7) TMI 228 - HIGH COURT GUJARAT] to mitigate an warranted hardship resulting from reading the provision of limitation in absolute terms - Even while considering the provision of acceptance of claim by the Authority when sole responsibility of supply of document is of the department, the fact remains that overall requirement is of furnishing of particular documents and in absence thereof, to deny the entertainment of such rebate claim and, therefore, waiting for the shipping bill to be delivered by the department cannot in any manner be held against the petitioner. More so, when the amendment has come on 01.03.2016 by way of Notification No.18 of and the claim is of the year 2010 and, therefore also, this being a subsequent change applying the period of limitation of one year at a later date; the decision of Cosmonaut Chemicals and also of other High Court would need to be regarded. The order whereby the claim of the petitioner has been rejected on the ground of being barred by the law of limitation under section 11B of the Act is quashed and set aside - petition allowed - decided in favor of petitioner.
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