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M/s Gravita India Ltd. Versus Union of India and Others

2016 (4) TMI 839 - RAJASTHAN HIGH COURT

Refund/rebate claim rejected - Computation of limitation - Held that:- There is no quarrel with proposition that if Statute provided for limitation, it has to be adhered to. What however is being claimed by the petitioner is different. The question which arises in the present case is as to what should be the starting point for computation of this period of one year. We are persuaded to follow the view taken by the Gujarat High Court in Cosmonaut Chemicals [2008 (7) TMI 228 - HIGH COURT GUJARAT ] .....

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to the Department. Where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point .....

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inesh Kumar, counsel For the Respondent : Shri Sarvesh Jain, counsel ORDER BY THE COURT:- M/s Gravita India Ltd., petitioner herein, is a Company incorporated under the Companies Act, 1956. This company is engaged in manufacturing of lead and lead alloys falling under Chapter Heading 78.11, 78.04, 28.04 and 78.01 of the Schedule to the Central Excise Tariff Act, 1985 (for short, 'the Act of 1985'). Petitioner is also exporting goods manufactured by them and such goods are cleared from th .....

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nts 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 ₹ 4,918/- along with said rebate .....

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r, in its reply to said notice, submitted that although the claim submitted was rejected, as being time barred by one year, but this delay was due to circumstances beyond control of the petitioner as the Customs Department at Nhava Sheva Port handed over the shipping documents after one year of export and the exception of claim filed beyond time limit of one year is available when delay is due to circumstances beyond control of the claimant or the delay is on account of lapse on the part of depa .....

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09 and after receipt of the document rebate claim was filed in the office of the Assistant Commissioner, Central Excise Division-1, Jaipur on 10.09.2009. The Assistant Commissioner, however, vide Order-in-Original dated 18.08.2010, rejected the claim of refund of the petitioner. Aggrieved thereby, petitioner approached the Commissioner (Appeals)-I, Customs & Central Excise, Jaipur, who also dismissed the appeal by order dated 02.02.2011. Petitioner thereagainst preferred revision application .....

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s issued on 26.12.2012, on the ground of limitation. The case of the Revenue is that while the goods were exported on 14.07.2008, the rebate claim was filed on 10.09.2009 (after expiry of one year from the date after export of goods) and as such the same was hit by the limitation under Section 11B of the Act of 1944. Firstly this provision would not be applicable to the present case and secondly, if at all the same is considered to be applicable, then the date of release of the necessary documen .....

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as 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 r .....

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t not informed the date of generation of EP copy of referred shipping bill. Considering the above facts it has been concluded that the claim filed by petitioner was time barred. Learned Commissioner (Appeals) has also erred in not appreciating the fact that in case the correct information regarding generation of EP, copy of referred shipping bill was not coming from the Superintendent, Customs (Prev.), Jawahar Lal Nehru Customs House, Nhava Sheva, District Rajgarh, Maharashtra, it was obligatory .....

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d Collector, Land Acquisition Anantnag and Another Vs. Mst. Katiji and Others - 1987 (28) E.L.T. 185 (S.C.). Per contra, Shri Sarvesh Jain, learned counsel for revenue, opposed the writ petition and argued that learned Assistant Commissioner has clearly stated the reason of issuing show cause notice in its Para 7, wherein it is stated that the claim is liable to be rejected not only on limitation but also on merit. The reply and affidavit submitted by the petitioner have been duly considered by .....

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ntial evidence, by which he was allegedly 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 .....

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ival 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 duty and interest if any, paid on such duty, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and that the application .....

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ot apply where any duty and interest, if any, paid on such duty has been paid under protest. Rule 18 of the Rules of 2002 provides that where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. The Notifi .....

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y be, the Maritime Commissioner. It is thus clear that the claim would be maintainable only when the original documents are produced. A Division Bench of Gujarat High Court in Cosmonaut Chemicals, supra, while interpreting Section 11B of the Act of 1944, observed that a claim has to be accompanied by requisite documents in case of an assessee, who has exported duty paid goods, being copy of shipping bill duly endorsed by the Customs Authorities. It was held that if the Customs Authorities delay .....

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tment. 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 interpret .....

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ty is bound by the prescribed period of limitation and cannot condone any delay also does not merit acceptance in light of what is stated hereinbefore. The Adjudicating Authority and the Revisional Authority have read the period of limitation divorced from sub-paragraph No.2.4 of the CBEC Manual which has provided for a circumstance to mitigate the unwarranted hardship resulting from reading the provision of limitation in absolute terms. In other words, howsoever limited, an exception has been c .....

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partment or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and in the circumstances on a conjoint reading of the provision and the instructions in the CBEC Manual there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. The Madras High Court in Dorcas Market Makers Pvt. Ltd. Vs. Commissioner of Central Excise, supra, in which claim petition was di .....

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judgment of the Supreme Court in Collector of Central Excise, Jaipur Vs. Raghuvar (India) Ltd. - (2000) 5 SCC 299, observed that provisions of Section 11A of the Central Excises and Salt Act, 1944, would have no application to any action 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 notificatio .....

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tion 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 non-availability of requisite document is on account of Central Ex .....

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ps the petitioner because in para 6 of the judgment, the Supreme Court observed that where the duty has been levied without authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder having no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. The division bench judgment of Bombay High Court in Everest Flavours L .....

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