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TMI Blog2012 (8) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... tocopies of Bill of lading, photocopies of commercial invoice/packing list, copies of Shipping Bill (Exchange Control). The documents were therefore not properly filed. It was also noted that the claims were filed after the expiry of one year from the date of shipping of the exported goods, against which the refund claims were filed. A show cause notice dated 15-4-2008 was issued to the claimant proposing to reject the claim for non-submission of proper documents along with the claim and for filing the claim beyond the stipulated period of one year. The applicant later filed some documents as required, but not all. As regards delay they have admitted that there was a delay in filing the claims. The show cause notice has since been adjudicated vide the impugned order-in-original rejected the above rebate claims. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who upheld the impugned order-in-original and rejected the appeal of the applicant. 4. Being aggrieved by the impugned order-in-appeal, the applicant filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the subjected rebate claim was rejected by the Jurisdictional Assistant Commissioner of Central Excise, Pune Division primarily on the grounds of time limitation. The Commissioner (Appeals) also upheld the said order. The applicants filed appeal before Hon'ble CESTAT, West Zone Bench, Mumbai against the impugned order-in-appeal. Hon'ble CESTAT found merit in the contention of department that the Tribunal has no jurisdiction to decide the appeal in respect of the order passed by the Commissioner (Appeals) relating to rebate of duty of excise on goods exported to any other country. The appeal of the applicant was dismissed as non-maintainable by pronouncing orders in Court on 6-9-2010 which the applicant states to have been received on 28-9-2010. Now the applicants have filed revision application on the grounds stated in Para 4 above. 8. Government observes that the impugned order-in-appeal was communicated to applicants on 4-9-2009. Against the said order-in-appeal the applicants filed appeal before Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-9-2009 to 9-9-2010 : 1 year 4 days (b) Time taken for pursuing Appeal before CESTAT : 1-12-2009 to 16-9-2010 : 9 months 15 days 11. Since the revision application is filed within extended condonable period of three months, (excluding the period spent before Hon'ble CESTAT), Government condones the delay of 71 days in exercise of powers vested in it under Section 35EE of Central Excise Act, 1944. 12. On perusal of records, Government observes that the original adjudicating authority has rejected the rebate claim on limitation ground which is upheld by Commissioner (Appeals). The applicants basic contention is that the rebate claim could not be filed in time due to non-availability of dealing (Central Excise) Assistant because he met with a serious accident and further lack of documents without which the department would not have accepted the claim. They have bona fide reasons and jurisdictional Assistant Commissioner out to have entertain the rebate application. Due to such technicalities the very objective of export cannot be denied. 13. As per Explanation (A) to Section 11B, refund includes rebate of duty of excise on excisable goods exported of India o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 11B of Central Excise Act, 1944 being time-barred is liable to be rejected. 16. Hon'ble High Court of Gujarat in its order dated 15-12-2011 in the case of IOC Ltd. v. UOI [SCA No. 12074/20110 = 2012 (281) E.L.T. 209 (Guj.)] has held as under :- "We are unable to upheld the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of Section 11B itself are sufficiently clear. Sub-section (1) of Section 11B, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of one year from the relevant date. Remedy to claim refund of duty which is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority on sufficient cause being shown. Secondly, we find that the Apex Court in the case of Mafatlal Industries Ltd. v. UOI - (1997) 5 SCC 536 = 1997 (89) E.L.T. 247 (S.C.) had the occasion to deal with the question of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ?" 17. The Hon'ble CESTAT, South Zonal Bench, Chennai in the case of Precision Control v. CCE, Chennai - 2004 (176) E.L.T. 147 (Tri.-Mum.) held that the "Tribunal, acting under provisions of Central Excise Act, 1944 has no equitable or discretionary jurisdiction to allow a rebate claim de hors the limitation provisions of Section 11B ibid - under law laid down by Apex Court that the authorities working under Central Excise Act, 1944 and Customs Act, 1962 have no power to relax period of limitation under Section 11B ibid and Section 27 ibid and hence powers of Tribunal too, being one of the authorities acting under aforesaid Acts, equally circumscribed in regard to belated claims - Section 11B of Central Excise Act, 1944 - Rule 12 of erstwhile Central Excise Act, 1944 - Rule 18 of the Central Excise Rules, 2002. Contextually, in the case of Uttam Steel Ltd. Also, the Hon'ble Bombay High Court allowed a belated rebate claim in a writ petition filed by the assessee. This Tribunal, acting under the provisions of the Central Excise Act, has no equitable or discretionary jurisdiction to allow any such claim de hors the limitation provisions of Section 11B." 18. Further, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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