9911796707
TMI Blog2016 (4) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... Invoice No.17 dated 10.07.2008 and the said goods were exported vide Shipping Bill No.6474467 dated 09.07.2008. Goods were allowed for export on 14.07.2008. Relevant documents were received in the first week of September, 2009, from Custom Authorities. After export of the said good and on receipt of the documents from custom authorities, the petitioner under Rule 18 of the Rules of 2002 read with Notification No.19/2004 C.E. (NT) dated 06.9.2004, as amended from time to time, filed a refund claim on 10.09.2009 for the rebate of duty paid by them on the export goods. Simultaneously, the petitioner also filed a refund claim of Rs. 4,918/- along with said rebate claim of Rs. 4,70,121/- on the ground that it had paid said amount of duty on the post removal expenses of Rs. 1,03,325/-, which was otherwise not payable. The Assistant Commissioner, Central Excise Division-II, Jaipur, served a notice dated 13.11.2009 on the petitioner calling upon it to show cause as to why the aforesaid claim be not rejected in terms of the provisions of Section 11B of the Central Excise Act, 1944, and the Rules made thereunder on the reason mentioned above. Petitioner, in its reply to said notice, submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, then the date of release of the necessary documents by the Department shall be the date for computation of limitation. Learned counsel argued that Section 11B of the Act of 1944 would not be attracted to the claim of rebate/refund of duty under the provisions of Rule 18 of the Rules of 2002, as no limitation has been prescribed therein. The order of the Government of India is therefore liable to be set aside. It is submitted that learned Assistant Commissioner also erred in rejecting the rebate claim of refund on the ground of limitation whereas if the petitioner had not received the export documents and shipping bills from the Customs Authorities at the port of export, there was no way it could file the claim. Case of the petitioner before the Assistant Commissioner was that delay in filing the claim was due to the lack of properness in feeding the stuffing report by the Superintendent and Shipping Line. The petitioner was prevented from filing the rebate/refund claim in time. It is thus argued that the appellate authority and the revisional authority neither applied their mind to this aspect of the matter nor appreciated judgment of Gujarat High Court in Cosmonaut Chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevented from filing the claim within the prescribed time limit. The claim was filed for refund of rebate of duty on the export goods. The Joint Secretary to the Government was perfectly justified in rejecting the claim. Learned counsel for revenue, in support of his arguments, has relied on judgments in Everest Flavours Ltd. Vs. Union of India - 2012 (282) E.L.T. 481 (Bom.), Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.), Indian Oil Corporation Ltd. Vs. Union of India - 2012 (281) E.L.T. 209 (Guj.), Oswal Chemicals & Fertilizers Ltd. Vs. Commissioner of C.EX., Bolpur - 2015 (318) E.L.T. 617 (S.C.), Sarita Handa Exports (P) Ltd. Vs. Union of India - 2015 (321) E.L.T. 434 (P&H), Union of India Vs. Kirloskar Pneumatic Company - 1996 (84) E.L.T. 401 (S.C.) and Miles India Limited Vs. Assistant Collector of Customs - 1987 (30) E.L.T. 641 (S.C.). We have given our thoughtful consideration to rival submissions and perused the material on record. Section 11B of the Act of 1944, inter alia, provides that any person claiming refund of any duty of excise and interest, if any, paid on such duty, may make an application for refund of such dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is not in a position to make a claim without accompanying documents. The court further clarified that mitigating circumstance as flowing from the legislative scheme is one and one only viz., an assessee cannot be penalized, where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. Then, this would be delay occasioned owing to such reason and circumstance, which is beyond control of the claimant. Para 20, 21 and 22 of the judgment read as under:- "20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of Section 11B of the Act read with paragraph No.2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion taken under Rule 57-I of the Central Excises and Salt Rules, 1944, prior to its amendment on 6.10.88, and Rule 57-I of the Rules is not in any manner subject to Section 11A of the Act. It was therefore held that the Rule will act independently. Since notification issued under Rule 18 did not prescribe time limit, it was held that Section 11A of the Act, which provides six months time for claiming rebate, would not be applicable to deny rebate claim of the petitioner. The Madras High Court in Dy. Commissioner of C. Ex., Chennai Vs. Dorcas Market Makers Pvt. Ltd., supra, has also taken a similar view with regard to Notification No.19/2004-C.E., dated 06.09.2004, which superseded the previous Notification No.41/94-C.E. that it did not contain the prescription regarding limitation, and held that a conscious decision taken by Central Government dismissing application for refund as time barred is unjustified. In Exclusive Steels Pvt. Ltd. Vs. Union of India, supra, also, a Division Bench of Gujarat High Court held that the only circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation would be where the lapse as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
