TMI Blog2020 (8) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ed prior to payment. The Notification No.14/2016 is a substitution to the original paragraph 3(b) of Notification No.27/2012. The term Substitution literally means as a thing acting or used in place of another - to substitute certain words or phrases or sentences in the original notification, would mean that the subsequent substitution would replace those words, phrases or sentences. In effect, what originally stood in the notification is replaced with the subsequent notification brought through substitution. While that being so, it cannot be construed as a new amendment for giving effect to certain procedures prospectively, but rather requires to be interpreted as having replaced the original procedure and thereby, the replacement would come into effect for the same time as the original procedure was provided for. If this interpretation is applied to the facts of the case involved, the reasoning of the respondent adduced in the impugned order that the relevant date would be the date of receipt of payment in convertible foreign exchange and thereby, the findings that the application was time barred, cannot be found fault with. Petition dismissed. - W.P.Nos.5941 & 6018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange. Since the respondent has found that the date of receipt of payment in convertible foreign exchange with regard to the exports made during the period was after the one year period referred above, both the applications were held to be time barred and thus rejected. 4. It is the contention of the learned counsel for the petitioner that since the new condition of reckoning the relevant date in Para B of the Notification No.27/12 dated 18.06.2012 came into effect through Notification No.14/2016 dated 01.03.2016, the amendment would only apply to the refund claims for the subsequent quarters and not for the earlier quarters. In support of his contentions, the learned counsel for the petitioner relied upon the decision of the Hon'ble Division Bench reported in 2018 (359) ELT 678 (Mad.) in the case of TARAJYOT POLYMERS LTD Vs. Union of India and SODEXO FOOD SOLUTIONS INDIA PRIVATE LIMITED Vs. STATE OF TAMIL NADU, rep. by the Deputy Commissioner (CT), Chennai reported in 2019 VIL (207) MAD. 5. The learned Standing Counsel for the respondent, on the other hand, would submit that the clarification Notification No.14/2016 dated 01.03.2016 is only a substitution of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is filed. Originally, Notification No.27/12 dated 18.06.2012 prescribed the procedure for filing the refund claims, by which, the claimant was required to file the application before the expiry of period specified in Section 11B of the Central Excise Act. Clause 3(b) of the Notification No.27/12 dated 18.06.2012 came to be substituted , whereby the relevant date would be one year from the date of receipt of payment in convertible foreign exchange, where provision of service has been completed prior to payment. The Notification No.14/2016 is a substitution to the original paragraph 3(b) of Notification No.27/2012. 9. The term Substitution literally means as a thing acting or used in place of another. 10. In other words, to substitute certain words or phrases or sentences in the original notification, would mean that the subsequent substitution would replace those words, phrases or sentences. In effect, what originally stood in the notification is replaced with the subsequent notification brought through substitution. While that being so, it cannot be construed as a new amendment for giving effect to certain procedures prospectively, but rather requires to be interpreted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Entry in the Notification dated 21.10.2015 shall be 5402 47 for all purpose and it shall be so with effect from 21.10.2015. 11. The learned counsel for the Revenue vehemently contended that the product classification is indicative only and is in no way binding on the anti-dumping duty investigation. In the instant case, the question of considering this submission does not arise, in the light of the Notification No.5 of 2016 : MANU/CUSA/0009/2016, dated 22.02.2016, which clearly states that it is a notification issued in substitution dated 22.02.2016, which clearly states that it is a notification issued in substitution of the earlier notification. Therefore, the proper of reading Notification No.51 of 2015: MANU/CUSA/0054/2015, dated 21.10.2015 is to read the Entry as 5402 47. 12. Thus, for the above reasons it is held that the Notification No.5 of 2016:MANU/CUSA/0009/2016, dated 22.02.2016 being substitutive in nature is held to be retrospective. 14. In the same lines, the Hon'ble Division Bench of the Karnataka High Court in Fosroc's case (supra) has held as follows: 9. What is the effect of substitution of a provision in the place of an exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause to serve in place of another person or thing'; 'to replace (an atom or group in a molecule) with (another atom or group) ; or 'a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'. 16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby. 17. There cannot furthermore be any doubt whatsoever that when a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberally construed. 15. The Hon'ble Division Bench of this Court had also an occasion to interpret the term Substitution in the S.P. Fabricators' case (supra) in the following manner :- 17.On a reading of the above amendment, it is evident that clause (i) of sub-rule 6 of Rule 6 was substituted, thereby, the provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty or either cleared to a unit in a special economic zone or to a developer of a special economic zone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case, this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case, a three-Judge Bench of this Court emphasised the distinction between 'supersession' of a rule and 'substitution' of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule his brought into existence in its place. 16. On an overall appreciation of the decisions referred above and the discussions made by this Court, I do not find any merits in the contentions raised by the petitioner. Accordingly, both the Writ Petitions stand dismissed. Consequently, connected Miscellaneous Petition is closed. No costs. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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