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TMI Blog2019 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... . FOR THE RESPONDENT : SRI JEEVAN J. NEERALAGI, A/W SRI ARAVIND V. CHAVAN, ADVS ORDER These petitions involving similar and akin issues, have been considered together and are disposed of by this common order. 2. The petitioners are before this Court challenging the orders passed by the original Authority rejecting the rebate claim made by them as barred by time under Rule 18 of the Central Excise Rules, 2002 ['Rules' for short] read with Section 11-B of the Central Excise Act, 1944 ['Act' in short]. It is contended that no time limit has been prescribed for filing a rebate claim under Rule 18 of Rules and Section 11-B of the Act is not applicable to the Notification No.19/2004/CE(NT) dated 6.9.2004 issued by the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions, limitations and procedures for considering the claim for refund. The limitation prescribed under Sub-section(1) of 11-B of the Act has not been made applicable under the Notification No.19 of 2004 during the relevant period. The entitlement to refund not being in doubt, in the absence of any time prescription in the scheme, the rejection of the application for refund as time barred, is unjust. It is submitted that similar view has been taken by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur and Hon'ble High Court of Punjab and Haryana at Chandigarh. Reliance is placed on the following decisions: 1. Deputy Commissioner of Central Excise V/s. Dorcas Market Makers Pvt. Ltd., reported in [2015][321] ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2017)355 ELT 342. 7. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record. 8. The primary ground of challenge to the orders impugned is relating to the applicability of Section 11-B of the Act to the Notification No.19/2004 issued under Rule 18 of the Rules. It is not in dispute that the Notification No.41 of 1994/CE holding the field for about 10 years did prescribe the time limit for availing the refund of duty. The omission of the time limit in the subsequent Notification 19/2004 was considered by the Hon'ble High Court of Madras in the case of Dorcas Market Makers Pvt. Ltd., supra, it was held that the rebate of duty under Rule 18 should be as per the Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The effect of Section 11-B, and in particular, applications for rebate being made within time, has been laid down in Mafatlal Industries Ltd. V. Union of India, thus: (SCC pp. 631-33, para 108) "108. The discussion in the judgment yields the following propositions. We may foreman that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff-whether before the commencement of the Central Excises and Customs Laws (Amendment) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties imposed thereunder. Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasis in this behalf that Act provides a complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months. We, therefore, allow the appeal and set aside the Bombay High Court judgment dated 12.8.2003". 11. It was argued by the learned counsel for the petitioners that the order passed in M/s Hyundai Motors India Limited, supra, is inconsistent with the decision of M/s Ford India limited, supra, whereby it has been held that Section 11-B would not govern the provisions of the special scheme and therefore, there is no scope for invoking Section 11-B of the Act. In this context, it is significant to note that the Hon'ble Madras High Court while considering the exemption notification issued under Section 5A of the Act, has held that section 11-B of the Act would not apply, whereas while rendering the judgment in M/s. Hyundai Motors supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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