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TMI Blog2017 (12) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed an appeal with the Commissioner (Appeals) who also rejected the same and upheld the order of the Assistant Commissioner. Now the Revision Applications have been filed mainly on the following grounds : (i) They had intimated the jurisdictional Assistant Commissioner beforehand regarding export of goods and their intention to claim rebate of duty under Notification No. 21/2004-C.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 (iv) Violation of Section 11B of Central Excise Act has not taken place as claims were submitted in time and they had withdrawn thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for refund of rebate in this case. It is further supported by the provision of Section 11BB of the Central Excise Act as per which interest is payable if the refund of duty is not paid within three months of filing of the refund claim. The interest payment is mandated under this provision only if the delay is due to slackness or indifference on the part of sanctioning authority and the provision does not contemplate to pay interest when proper application is not filed by the applicant himself and subsequently it is withdrawn by the applicant himself only because of realization of wrong incomplete application.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, Coimbat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a piece of subordinate legislation made by Central Government in exercise of the power given under Central Excise Act whereby the Central Government has been empowered to further prescribe conditions, limitations and procedure for granting the rebate of duty by issuing a notification. Being a subordinate legislation, the basic features and conditions already stipulated in Section 11B in relation [to] rebate duty need not be repeated in Rule 18 and the areas 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has not dealt with the observations of the Supreme Court in para 14 and para 15 of the decision in the case of Raghuvar India or with the line of reasoning therein. On examining the aforesaid paras 14 & 15 of the Supreme Court's decision it is, however, noticed that no different reasoning has been given and the Supreme Court has just emphasized in these paras to strengthen their main view in earlier paras that Section 11A is general in nature and the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds covered in the present cases are identical to the exported goods for which rebate of duty is already sanctioned by the Assistant Commissioner. Consequently it is not possible for the Government at this juncture to say that their letter dated 8-3-2011 to the Assistant Commissioner and the Superintendent's letter dated 18-4-2011 covered even inputs used in the exported goods covered under the rebate claims under consideration. Considering these facts and especially the non-compliance of the condition of the letter dated 18-4-2011 despite of five letters to the applicant by the Range Superintendent, it is evident that non-submission of input-output ratio in respect of each export consignment in time is not a procedural and bona fide lapse only. The Assistant Commissioner in his order has clearly concluded that it was not an inadvertent mistake and rather the claimant knowingly and willingly had not followed the condition of the permission even after repeated reminders to them to follow the condition.
9. In view of the [above] discussion, the Government does not find any error in the order of the Commissioner (Appeals) and the Revision Applications are rejected. X X X X Extracts X X X X X X X X Extracts X X X X
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