TMI Blog2019 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer and held the recovery sought by the revenue to be within time. The scheme for rebate under Rule 18 of the Rules read with Notification No. 19 of 2004 dated 06.09.2004 is a special law granting rebate from excise duty to exporters. It is not a scheme for general rebate (under section Explanation A to 11B of the Act). The rebate is not a general rebate from excise duty (that may be otherwise available under the Act). The scheme to grant rebate from excise duty on goods exported by the petitioner was a special beneficial scheme provided under Section 37 of the Act read with Rule 18 of the Rules and notification No. 19 of 2004 dated 06.09.2004, to provide incentive to manufacturers to export their manufactured goods. It was a self contained scheme - None of the conditions and limitations provided under the aforesaid notification were such as may be read to contain a stipulation of limitation of one year from the relevant time or from the date of shipment etc. for the purpose of making a claim for rebate. There is no room to add to those conditions and limitations by reading the general provisions of section 11B of the Act into it. Petition allowed. - Writ Tax No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide India and includes shipment of goods as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. 3. The conditions and limitations for providing the rebate are contained in clause (2) of that notification. They read as below: (2) Conditions and limitations :- (a) that the excisable goods shall be exported after payment of duty, directly from a factory or warehouse, except as otherwise permitted by the Central Board of Excise and Customs by a general or special order; (b) the excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse or within such extended period as the Commissioner of Central Excise may in any particular case allow; (c) that the excisable goods supplied as ship's stores for consumption on board a vessel bound for any foreign port are in such quantities as the Commissioner of Customs at the port of shipment may consider reasonable; (d) the rebate claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty shall, if the claim is found in order, be sanctioned and disbursed by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs. 5. Undisputedly, the petitioner exported its final product, namely Camphor USP to countries other than Nepal and Bhutan. The disputed transactions are ten such transactions performed between the period February 2012 to October 2012. Again, undisputedly, the petitioner claimed rebate from payment of duty on such exports beyond one year from the date of shipment being dispatched. Thus, the refund claims were made during the period February 2013 to October 2013, such that in each case the claim came to be made more than a year after the actual shipment of the goods. 6. All ten claims came to be rejected by separate orders dated 03.09.2013, 16.09.2013 and 29.01.2014, as time barred under the provisions of Section 11B of the Act. For ready reference, the relevant extract of Section 11B of the Act is quoted below: SECTION [11B. Claim for refund of [duty and interest, if any, paid on such duty]. -(1) Any person claiming refund of any [duty of excise and interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner submits, in the first place, the scheme for grant of rebate from payment of excise duty was a separate scheme under the Rules read with Notification no. 19/2004 dated 06.09.2004 distinct from the scheme for levy of excise duty under the Act. The petitioner did not claim refund of excise duty paid by it rather, it made a separate and distinct claim of rebate. Section 11B of the Act inter alia prescribed the period of limitation to make a claim for refund only. It had no applicability to a claim for rebate. Therefore, in is his submission the provisions of Section 11B of the Act that provide for refund of duty paid in excess are not applicable to claims of rebate from excise duty claimed by the present petitioner. 10. Alternatively, it has been submitted, even if the claim of rebate being claimed is treated at par with a claim for refund (in view of the language of Explanation (A) appended to Section 11B of the Act) then, the rebate from excise duty on goods exported by the petitioner was a special beneficial scheme. Section 11B of the Act has no applicability in the same. 11. Then, referring specifically to the method of presentation of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and JSL Lifestyle Ltd. Vs. UOI, 2015 (326) ELT 265 (P H) . Also, great stress has been laid to distinguish the judgment of a Division Bench of the Bombay High Court in the case of Everest Flavours Ltd. Vs. UOI, 2012 (282) ELT 481 (Bom) . In that regard, it has been submitted that the ratio of the judgment of the Supreme Court in the case of Raghuvar (India) Ltd. (supra) contained in paragraphs 14 and 15 of that report had remained from being considered by the Bombay High Court. Therefore, that decision does not lay down the correct law. On the other hand, stress has been laid on the decisions of the Madras and Punjab and Haryana High Courts in the cases of Dorcas Market Makers Pvt. Ltd (supra) and JSL Lifestyle Ltd. (supra) noted above, to submit, those decisions had taken note of the complete ratio of the decision of the Supreme Court in the case of Raghuvar (India) Ltd. (supra) and, therefore, they lay down the correct law. 16. The reasoning of the revising authority, insofar as it has followed the decision of the Bombay High Court in Everest Flavours Ltd. (supra) , has been assailed as incomplete. The points of distinction noted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, any distinction that may otherwise have existed between the true meaning, purport and scope of a refund claim and a rebate claim, has been rendered inconsequential and extraneous. 20. Therefore, in his submission, under the Act, their do not exist two separate provisions providing limitation to file claims for refund and rebate. A claim of rebate and claim of refund are one and same for the purpose of Section 11B of the Act. Consequently, in his submission, the rule of limitation provided under Section 11B of the Act would apply with equal force to a claim of rebate. He has placed full faith in the decision of the Bombay High Court in the case of Everest Flavours Ltd. (supra) . 21. Having heard learned counsel for the parties and having perused the record, in the first place, it would be fruitful to consider the ratio of the Supreme Court in the case of Raghuvar (India) Ltd. (supra) . As noted above, it was a case where the revenue was seeking to recover from the manufacturer MODVAT wrongly availed. While the entitlement to availment of MODVAT arose to the manufacturer with effect from 10.03.1987, it availed MODVAT credit with respect to input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he MODVAT scheme underwent an amendment on 06.10.1988 whereby period of limitation of six months was introduced to Rule 57-I. That amendment being purely prospective in nature, it was held that it did not apply to past transactions. 25. The above decision of the Supreme Court was followed by the division bench of this Court in the case of Ram Swarup Electricals Ltd. (supra) , though in that case, the question was different (from the one involved here), being whether short availed MODVAT credit would constitute refund claim and accordingly be subject to the rule of limitation contained in Section 11B of the Act. The division bench, after taking note of the reasoning of the Supreme Court in the case of the Raghuvar (India) Ltd. (supra) in paragraph nos. 13, 14 and 15, held as below: 7. In view of the principle laid down by the Apex Court in Raghuvar (India) Ltd. (supra) provisions of Section 11A of the Act is not attracted and cannot be imparted in respect of the Rules framed for availing of the Modvat, the same principle would apply for the purpose of Section 11B of the Act also. In view of the decision of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia) Ltd. (supra) had not been relied before the Bombay High Court. For that reason, it does not appear to have been considered or dealt with. 29. On the other hand, the decision of learned single judge of the Madras High Court in Dorcas Market Makers Pvt. Ltd (supra) became a subject matter on intra-court appeal before that court wherein division bench decision of the Bombay High Court in Everest Flavours Ltd. (supra) was relied by the revenue. The decision in the case of Dorcas Market Makers Pvt. Ltd (supra) was also a case of rebate from excise duty, claimed under the same notification as is under consideration in the present case. The division bench of the Madras High Court took note of Rule 12 of the old Rules governing rebate, which provisions are reflected and are pari materia to Rule 18 of the Rules under consideration in the present case. Also, the distinction between the rebate claimed and a refund claim with reference to the judgement, decree or order of the Court had also been taken note of and relied upon to bring out a distinction as to the start of period of limitation for the purpose of Section 11B of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. However, it still falls for consideration whether in view of the further reasoning of the Supreme Court there exists any special law governing the claims for rebate from excise duty and whether the amendment made introduces the rule of limitation, only prospectively. Looking into the clear language of the notification, it appears that in the first place, the delegate of the legislature i.e. Central Government, in exercise of the powers under Rule 18 of the Rules read with Section 37 of the Act provided that the claim for rebate from excise duty shall be subject to the conditions, limitations and procedures specified in the notification itself. 33. The notification, read in its entirety, does not, in any way or manner suggest that it adopts the rule of limitation contained in Section 11B of the Act or that the conditions and limitations imposed under the notifications are in addition to those contained under the general provisions of the Act. It is also not the case of the revenue that other than the Section 11B of the Act, there existed any other provision of law as may have expressed an intendment of the legislature to restrict the claims for rebate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant. Thereby under Clause 3(b), sub-paragraph (I), the words before the expiry of the period specified in Section 11B of Central Excise Act, 1944 (1 of 1944) have been introduced for the first time. Clearly, that amendment has been made prospectively from 01.03.2016 and there is no intendment either explicit or implied to make it retrospective. As discussed by the Madras High Court in Dorcas Market Makers Pvt. Ltd (supra) , with which I find myself in agreement, the pre-existing law and the post amendment law would clearly bring out that the amendment to the notification in question was wholly amendatory and not clarificatory. 38. The division bench decision of this Court in the case of Ram Swarup Electricals Ltd. (supra) had adopted the reasoning of the Supreme Court in Raghuvar (India) Ltd. (supra) in entirety and no distinction has been made thereto. To that extent the view of the Bombay High Court is found not consistent with that of the division bench of this Court. For that reason also, it looses its persuasive value. 39. It is also relevant to note that the Supreme Court had itself clarified that the rule of special law prevailin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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