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TMI Blog2012 (4) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2007 the Assistant Commissioner rejected the claim for rebate filed by the petitioner. The order was confirmed in appeal by the Commissioner of Central Excise (Appeals). A Revision Application filed by the petitioner has been rejected by the Joint Secretary to the Union Government in the Ministry of Finance. 2. The ground on which the rebate claim filed by the petitioner has been rejected is that it has been filed beyond the period of limitation prescribed by Section 11B of the Central Excise Act, 1944. Under Section 11B a claim for the refund of duty has to be made within a period of one year from the relevant date; the expression "relevant date" being defined to be the date on which the ship or aircraft in which the goods are loaded, leaves India. Since the export of the goods took place on 12 February 2006, the claim has been held to be barred by limitation since it was presented beyond a period of one year. 3. Three submissions have been urged on behalf of the petitioner: (1) Rule 18 of the Central Excise Rules, 2002 does not prescribe any time limit for making an application for rebate. No time limit has been prescribed in the Notification issued by the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year from the relevant date in such form and manner as may be prescribed and that application shall be accompanied by such documentary or other evidence establishing, inter alia, the duty paid character of the goods. Explanation (A) to Section 11B specifically provides that the expression "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Explanation (B) defines the expression "relevant date". Clause (a) of Explanation (B) provides that 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, 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 would be regarded as the relevant date. Parliament having specifically brought within the sweep of Section 11B a claim for rebate, it cannot be postulated that Rule 18 of the Central Excise Rules, 2002 would operate independent of the provisions of Section 11B. 6. Rule 18 provides as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Since the statutory provision for refund in Section 11B brings within its purview, a rebate of excise duty on goods exported out of India or materials used in the manufacture of such goods, Rule 18 cannot be read independent of the requirement of limitation prescribed in Section 11B. The Judgment of the Supreme Court in Raghuvar dealt with a situation where Section 11A did not bring within its purview an action for the recovery of MODVAT credit wrongly availed of which formed the subject matter of Rule 57-I. It was in this view of the matter that the Supreme Court held that the period of limitation prescribed under Section 11A would not apply to an action for recovery of MODVAT credit under Rule 57-I. This can have no application in the present situation which is clearly distinctive, 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 Vs. CIT (Appeals) 2012-TIOL-108-HC-MAD- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars in the official record or to be sent to the Excise Rebate Audit Section at the place of export in case rebate is to be claimed by electronic declaration. Sub-clause (b) of Clause (3) of the Notification makes a provision for presenting a claim for rebate of Central Excise duty in the following terms: "(b) Presentation of claim for rebate to Central Excise:- (i) Claim of the rebate of duty paid on all excisable goods shall be lodged along with original copy of the application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, the Maritime Commissioner; (ii) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise 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 sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been placed in the reply upon Paragraph 8.3 of the CBEC Manual to which a reference has been made above, and on a Trade Notice dated 1 June 2004 which is issued by the Commissioner of Central Excise and Customs. Paragraph 8.3 of the Manual makes it abundantly clear that what is required to be filed for the sanctioning of a rebate claim is, inter alia, a self attested copy of the shipping bill. The affidavit in reply also makes it clear that under the Central Excise Rules, 2002 there are two types of rebates : (i) A rebate on duty paid on excisable goods and (ii) A rebate on duty paid on material used in the manufacture or processing of such goods. The first kind of rebate is governed by Notification No.19/2004 dated 6 September 2004, whereas the second kind is governed by Notification No.21/2004 dated 6 September 2004. In the case of the rebate on duty paid on excisable goods, one of the documents required is a self attested copy of the shipping bill. For the second kind of rebate a self attested copy of the export promotion copy of the shipping bill is required. Counsel appearing on behalf of the petitioner sought to rely upon a Notification issued by the Central Board of Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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