TMI Blog2015 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Central Government and hence, the view taken by the learned Judge is fair and reasonable. Therefore, the understanding of the Ministry of Finance itself is quite different from what the appellant now contends. Moreover, the Department, many a times, invokes the theory of unjust enrichment. This is seen even from para 6 of the Circular of the Ministry dated 28.4.2004. In the case on hand, there is no dispute about the fact that the first respondent actually exported the goods. Their entitlement to refund is not at all in doubt. The factum of their having exported the goods is borne out by ARE-1 forms. After the advent of online filing of applications, it is very easy to check up whether the exports have taken place and whether duty had been paid or not. Therefore, in the absence of any prescription in the scheme, the rejection of the application for refund as time barred, is unjustified. - Decided against Revenue. - Writ Appeal No.821 of 2012 and M.P.No.1 of 2012 - - - Dated:- 26-3-2015 - V. Ramasubramanian And P. R. Shivakumar,JJ. For the Appellant : Mr. P. Mahadevan, SCGSC For the Respondent : Mr. Joseph Prabakar JUDGMENT V.Ramasubramanian, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944, a claim for refund of duty paid on the excisable goods used in the manufacture of goods exported shall be filed within one year from the date of departure of the Ship or Aircraft in which the goods are loaded. Since the claim was admittedly filed by the first respondent beyond the period stipulated in the statute, the same was liable to be rejected. 8. In support of the above contentions, the learned Senior Central Government Standing Counsel also invited our attention to: (1) the decision of the Supreme Court in Collector of Central Excise, Jaipur vs. Raghuvar (India) Limited [2000 (5) SCC 299], (2) the decision of a Division Bench of the Gujarat High Court in Ashwin Fasteners of Ashwin Panchal vs. Union of India [2010 (258) E.L.T. 174 (Guj.)], (3) the decision of the Division Bench of the Bombay High Court in Everest Flavours Limited vs. The Union of India [2012 TIOL-285-HC(MUM), and (4) the decision of the Division Bench of the Karnataka High Court in M/S MCI Leasing (P) Ltd, Mysore vs. Commissioner of Central Excise, Customs Service Tax, Mysore [2012-TIOL-54-HC(KAR). 9. In response, it is contended by Mr.Joseph Prabakar, learned counsel appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and relevant date are defined. It is by virtue of the definition of the expression refund appearing in Clause (A) of the Explanation under sub-section (5) that even a rebate of duty is included within the meaning of the expression refund . Similarly, the starting point for the period of limitation as prescribed in sub-section (1) is indicated in the definition of the expression relevant date in Clause (B) in the Explanation under sub-section (5) of Section 11B. 13. Therefore, one may tend to think that even a claim for rebate may have to be filed within one year from the relevant date, by virtue of sub-section (1) read with Explanation (B) for the expression relevant date under sub-section (5). But, the paradox is that the question of rebate of duty is governed separately by Section 12 and the entitlement to rebate would arise only out of a notification under Section 12(1). The definition of the expression relevant date under sub-section (5) of Section 11B does not take care of this contingency. 14. There is yet another paradox. As we have pointed out earlier, sub-section (3) of Section 11B contains a non-obstante Clause which excludes any judgment, decree or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a conscious decision taken by the Central Government and hence, the view taken by the learned Judge is fair and reasonable. 17. Coming to the decisions relied upon by the learned Senior Central Government Standing Counsel, it is seen that the decision of the Supreme Court in Collector of Central Excise vs. Raghuvar (India) Limited, arose out of the rules relating to MODVAT Credit. The Assessee, who was entitled to avail duty credit only from 10.03.1997, availed it even from 01.03.1997. Hence, a show cause notice under Section 11-A of the Act read with Rule 57-I of the Central Excise Rules, was issued. But it was issued beyond the period of six months. Therefore, CEGAT set aside the notice forcing the Department to seek a reference under Section 35-H of the Central Excise Act. The question that arose before the Supreme Court was whether the provisions of Section 11-A of the Central Excise Act were applicable to proceedings under Rule 57-I as it stood before the 1988 Amendment or not. It is in that context that the Supreme Court held that any law or stipulation prescribing a period of limitation to do or not to do a thing, after the expiry of the period so stipulated, has the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Karnataka High Court in MCI Leasing (P) Ltd., proceeds primarily on the basis of the observations of the Supreme Court in paragraph 99 of the decision in Mafatlal Industries Limited. Moreover, the Karnataka High Court was concerned with a claim for refund of Service Tax mistakenly paid by an assessee. It was not a case where the claim was for refund of the Excise duty paid on goods that were exported. Therefore, the ratio laid down therein may be of no assistance to the Revenue. 23. As we have pointed out earlier, the Scheme of Section 11-B has to be seen in the context of: (A) the enabling provision under sub-section (1) for filing an application for refund; (B) the power conferred under sub-section (2) upon the Assistant Commissioner to order refund; (C) the non-obstante Clause contained in sub-section (3) only with reference to sub-section (2); (D) the definition of the expression refund in Clause (A) of the Explanation under sub-section (5) that includes rebate within the meaning of the expression refund ; and (E) the separate provision for rebate available under Section 12 and the definition of the expression relevant date under Clause (B) (ec) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person; 28. In the Notification dated 14.9.2007, paragraph 2(c) reads as follows:- 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) ........... (b) ........... (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; 29. The amendment made to para 2(c) in the Notification dated 1.8.2008 reads as follows:- (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs; 30. As a precursor to the amendment, the Ministry issued a Circular bearing No.6/2008 dated 28.4.2008. In paragraph 4 of the said Circular it was stated as follows:- 4.1 In the Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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