TMI Blog2012 (12) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent destinations on 2-11-2001 and 13-11-2001 respectively. It is the case of the petitioner that appropriate amount of excise duty was paid by the processors on the said goods. The petitioner filed a consolidated rebate claim for the goods so exported on 2-11-2001 and 13-11-2001 on 9-2-2004. The Assistant Commissioner of Central Excise, issued a show cause notice on 13-4-2004 why such rebate claim should not be rejected as time-barred having been made later than one year from the date of export of the goods. It was also indicated that the required documents were not submitted for the refund claim. 3. On 23-4-2004, the petitioner submitted the required documents and also explained the delay why the claim was filed late. On 12-5-2004, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical circumstances, we had an occasion to deal with a similar petition in Special Civil Application No. 11990 of 2004. Such petition was dismissed making following observations : (6) It is not in dispute that three refund claims with which we are concerned, were filed beyond the period prescribed under Section 11B of the Act. That being the position, in our opinion, the Departmental Authorities committed no error in rejecting such refund claims. Merely, because the incident of duty was not passed on to the consumer, cannot be the sole ground on which Refund Applications must be allowed. Against the order of the Adjudicating Authority, granting the refund claim, we are told the Department is in Appeal. We, are however, not concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act do constitute law within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions, must be held to be collected, retained or not refunded, as the case may be, und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpressed our prima facie doubt about certain observations made by this Court in case of India Nippon Company Limited (supra). In any case, the facts of the present case are vitally different. The observations of this Court in case of India Nippon Company Limited (supra) cannot be `applied. The petition is therefore, dismissed. Rule is discharged. 5. Counsel for the petitioner, however, relied on a decision in the case of Cosmonaut Chemicals v. Union of India dated 30-7-2008 in Special Civil Application No. 12862 of 2004 [2009 (233) E.L.T. 46 (Guj.)] and connected petitions to contend that when the delay is caused due to reasons attributable to the Department, refund claim should not be dismissed. In the present case, admittedly, this wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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