TMI Blog2017 (12) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the present proceeding and, therefore, the rebate claims are manifestly hit by limitation of one year as already held by the Assistant Commissioner and Commissioner (Appeals) in their order. The refunds and rebate of duty Section 11B of the Central Excise Act is directly dealing statutory provision and it is clearly mandated therein that the application for refund of duty is to be filed with the Assistant/Deputy Commissioner of Central Excise before expiry of one year from the relevant date. Further in explanation in this Section, it is clarified that refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. In addition to time limitation, other substantive and permanent provisions like the authority who has to deal with the refund or rebate claim, the application of principle of undue enrichment and the method of payment of the rebate of duty, etc. are prescribed in Section 11B only - Since the time limitation of 1 year is expressly specified in Section 11B and as per this section refund includes rebate of duty, the condition of filing rebate claim within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E. vide their letter dated 8-3-2011 and the same was permitted by the Assistant Commissioner vide his letter dated 18-4-2011. Subsequently they had even intimated the jurisdictional Assistant Commissioner regarding input-output ratio relating to their different rebate claims. (ii) The delay in submitting intimation under Notification No. 21/2004-C.E. (N.T.) is only a procedural lapse for which substantive benefit cannot be denied as the claims were filed based on the declaration vide letter dated 8-3-2011. (iii) Several case laws as mentioned in their Revision Application also support their case. (iv) Violation of Section 11B of Central Excise Act has not taken place as claims were submitted in time and they had withdrawn their claims for the time being for minor corrections only which were finally re-submitted. 4. Personal hearing was held on 24-10-2017 and Ms. Sukriti Das, Advocate, appeared on behalf of the applicant. She mainly reiterated the submissions pleaded in the Revision Applications and also submitted a compilation of Rules, Notifications and case laws. 5. On careful examination of the Revision Application in the light of order-in-original and orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication is not filed by the applicant himself and subsequently it is withdrawn by the applicant himself only because of realization of wrong incomplete application. If the original date of filing of such wrong application is considered as relevant date for the purpose of counting limitation period even when proper application is re-submitted subsequently thereon, it may entail interest liability also for the Government for no fault of sanctioning authority and it may be misused by some of the unscrupulous claimants. Such intention cannot be behind Section 11B or even Rule 18 of CER and thus the above order of the CESTAT is also apparently per incurium. The decision of CESTAT in the case of Super Spinning Mills Ltd. v. CCE, Coimbatore - 2007 (219) E.L.T. 958, relied upon by the applicant is not found applicable in the present proceeding as in this case the revised amount was claimed in response to clarifications from the department from which it is evident that it is not a case of re-submission of refund claim and the revised amount was lodged in reference to clarification sought by the sanctioning authority. The third decision in the case of Orient Craft Ltd. v. CCE, Delhi-III, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as over and above already covered in Section 11B have been left to the Central Government for regulation from time to time. But by combined reading of both Section 11B and Rule 18 of Central Excise Rules, 2002 it cannot be contemplated that Rule 18 is independent from Section 11B of the Act. Since the time limitation of 1 year is expressly specified in Section 11B and as per this section refund includes rebate of duty, the condition of filing rebate claim within 1 year is squarely applicable to the rebate of duty when dealt by Assistant/Deputy Commissioner of a Division under Rule 18. Thus Section 11B and Rule 18 are interlinked and Rule 18 is not independent from Section 11B. This issue regarding application of time limitation of one year is dealt by Hon ble High Court of Bombay in detail in the case of M/s. Everest Flavour v. Union of India, 2012 (282) E.L.T. 48 wherein it is held that since the statutory provision for refund in Section 11B specifically covers within its purview a rebate of Excise duty on goods exported, Rule 18 cannot be independent of requirement of limitation prescribed in Section 11B. In the said decision the Hon ble High Court has differed from the Madras Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of Modvat is not made subject to Section 11A of the Act. But still the Punjab Haryana High Court has disagreed from the decision of Bombay High Court in the case of M/s. Everest Flavours and without considering the structure and text of Section 11A and Rule 18 of Central Excise Rules. Since Section 11B of Central Excise Act specifically deals with the rebate of duty also and contains a provision for limitation period of 1 year for filing an application for rebate claim, unlike Section 11A having no reference to recovery of Modvat credit as dealt by the Hon ble Supreme Court in the case of Raghuvar India, the decision of the Bombay High Court in the case of M/s. Everest Flavours is much reasoned, fully in accordance with the statutory provision in Section 11B and the decision of Punjab Haryana High Court is apparently per incurium as Section 11B is not discussed and analyzed at all. Therefore, with due respect to the Punjab Haryana High Court, the decision in the above case of M/s. JSL Lifestyles Ltd. cannot be given precedence over the Bombay High Court s decision in the case of M/s. Everest Flavours. Thus in none of the above mentioned decisions, except in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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