TMI Blog2017 (3) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions - refund allowed - appeal allowed - decided in favor of appellant. - ST/740, 741/12 - A/86191-86192/17/STB - Dated:- 8-2-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri S.P. Sheth, Advocate for appellant Shri V.R. Reddy, Asst. Commr (AR) for respondent ORDER Per M.V. Ravindran These two appeals are directed against orderd-in-appeal No. BR/31/2012 and BR/31/2012 both dated 09.08.2012. Since the issue that falls for consideration is the same, there being disposed of by a common order. 2. Heard both sides and perused the records. 3. The issue that falls for consideration in this case is regarding the refund of rebate claim under the provisions of Rule 5 of Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such duty. Sub-section (1) of Section 11B postulates that a person claiming refund of any duty of Excise may make an application for refund before the expiry of one year from the relevant date. While sub-section (1) postulates the entitlement of a person to seek refund, sub-section (2) outlines the power of the Assistant Commissioner to pass an order, determining the amount to be refunded and further directing that the amount so determined shall be credited to the Fund. Interestingly, sub-section (3) declares that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of the Act or the Rules or any other law for the time being in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 order of any Court or Tribunal. But, the definition of the expression relevant date under Clause (B)(ec) of the explanation under sub-section (5) of Section 11B includes within its purview the date of judgment, decree or order, in cases where the duty becomes refundable as a consequence of any judgment, decree or order. This is perhaps the reason why the non obstante clause contained in sub-section (3) is speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be specified by the Board, by filing electronic declaration. This Notification dated 6-9-2004 superseded the previous Notification bearing No. 41/1994, dated 12-9-1994. At the time when the 1994 notification was issued, the procedure for filing electronic declaration had not been made. Since everything was made manually at that time, the notification of the year 1994 prescribed a time-limit for filing claim. But, the 2004 notification did not contain the prescription regarding limitation. This was a conscious decision taken by the Central Government and hence, the view taken by the learned Judge is fair and reasonable. Aggrieved by such an order, Revenue preferred an appeal before the Apex Court and the same was dismissed after con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
