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TMI Blog2012 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 18 of Central Excise Rules, 2002 in respect of duties paid on excisable goods exported. On scrutiny of the claim, it was observed that the date of shipment of the said export was 28-9-2006 and thereby the rebate claim was hit by time limitation of one year as prescribed under Section 118 of the Central Excise Act, 1944. Therefore, a show cause notice under F.No.V/18-472/TD/Reb/07-08, dated 23-11-2007 was issued to the assessee as to why the rebate claim of Rs. 3,96,576/- should not be rejected being filed after expiry of one year. 2.1 Vide order-in-original No. R-105/CEX/AC/2008, dated 12-5-2008, the Assistant Commissioner, Central Excise and Customs, Aurangabad-III Division has rejected the rebate claim amounting to Rs. 3,96,576/- under Rule 18 of Central Excise Rules, 2002 read with Section 11B of Central Excise Act, 1944 but simultaneously he allowed the assessee to restore/avail the credit of duty paid of Rs. 3,96,576/- stating that proof of export is accepted and no payment of duty is required on export. 2.2 Being aggrieved with the said order-in-original dated 12-5-2008, the department went into appeal on the grounds that the Assistant Commissioner, Aurangabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed without requisite documents, it may lead to delay in sanction of the refund. Moreover, the claimant of refunds entitled for the interest in case refund is not given within three months of filing of claim. Consequently, submission of refund claim without supporting documents will not be allowed. Even if claim is filed by post or similar mode, the claim should be rejected or returned with query memo. The claim shall be taken as filed only when all relevant documents are available. In case any document is not available for which the Central Excise or Customs Department is solely accountable, the claim may be received so that the claimant is not hit by limitation period." Obviously, provision has been made that claim should be accepted even without the documents which are not available with claimant and department is responsible for delay. In this case, the rebate claim is correctly rejected on time bar issue as they failed to file the rebate claims within stipulated period. The party failed to take the advantage of the relaxation as given in above para 2.4. In present case the assessee failed to fulfil the requirement of the law and therefore claim was correctly rejected but allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities including the Commissioner (Appeals) in view of the Apex Court decision in the case of Kamalakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (S.C.)]. In the following cases the issue has been appropriately discussed and decided : Cosmonaut Chemicals, 2009 (233) E.L.T. 46 (Guj.) Uttam Steel Ltd., 2003 (158) E.L.T. 274 (Bom.) 5. Personal hearing scheduled in this case on 23-6-2011 and 27-7-2011 was neither attended by respondent nor filed any request for adjournment of case. Similarly department also did not attend hearing. As such Government takes up the case for decision on the basis of available case records and written submissions. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government observes that date of shipment of goods exported vide ARE-I No. 35/06-07, dated 23-9-06 was 28-9-2006 whereas refund claim was filed on 23-11-2007. These facts are not in dispute. Adjudicating authority had rejected the rebate claim as time barred but allowed re-credit of the duty paid on exported goods. Department filed appeal against the said order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail." 9.2 The Hon'ble High Court of Gujarat in the case of Alembic Glass Ind. Ltd. v. Union of India reported at 1992 (60) E.L.T. 64 (Guj.) held in para 11, as under : "That the claim was required to be made within the prescribed period of six months from the relevant date. The relevant date would be the date on which the goods re-entered the factory. In this case it would be January 4, 1988 and January 9, 1988 as provided in sub clause (b) of Clause B of Explanation to Section 11B of the Act. Thus the period of six months would expire on July 8,1988 while the claim has been preferred on March 29, 1989. The Assistant Collector is bound by the provisions of the statute. This is the law laid down by the Supreme Court in the case of Collector of Central Excise, Chandigarh v. M/s. Doaba Co-op. Sugar Mills Ltd. reported in AIR 1988 SC 2052 - 1988 (37) E.L.T. 478 (S.C.). In that case the department sought to invoke the provisions of Section 11A of the Act and attempted to make recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the limitation provisions of Section 11B. The ruling of the Apex Court are to be followed. It has been held by their Lordships that authorities working under the Central Excise Act and the Customs Act have no power to relax the period of limitation prescribed under Section 11B and Section 27 respectively of the two Acts. Therefore, the delay of the rebate claims filed by the applicants is not condoned. 9.4 Further, it has been held by the Hon'ble Supreme Court in the case of Collector Land Acquisition Anantnag & Others v. Mst. Katji & Others reported in 1987 (28) E.L.T. 185 (S.C.) that when delay is within condonable limit laid down by the statute, the discretion vested in the authority to condone such delay is to be exercised following guidelines laid down in the said judgment. But when there is no such condonable limit and the claim is filed beyond time period prescribed by statute, then there is no discretion to any authority to extend the time limit. 9.5 Hon'ble Supreme Court has also held in the case of UOI v. Kirloskar Pneumatics Company reported in 1996 (84) E.L.T. 401 (S.C.) that High Court under Writ jurisdiction cannot direct the custom authorities to ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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