TMI Blog2022 (5) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim is to be filed within one year from passing of the order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act. Such prescription of limitation is in direct conflict with the statutory provision, i.e. Section 11B of the Excise Act, which provides for limitation to commence from the date when the ship leaves India. Since the acknowledgment of the refund application was given on 18.2.2014, i.e. within one year from the date when the ship left India, i.e. on 20.2.2013, such refund application being within the period of limitation as stipulated under Section 11B of the Excise Act could not have been rejected as being barred by limitation. In any case, once it is held that the impugned clause 3(g) and the Explanation thereto of the Notification No.41/2012-ST dated 29.6.2012 is ultra vires Section 83 of the Finance Act read with Section 11B of the Excise Act, the impugned orders rejecting the refund on the ground of limitation cannot be sustained. The impugned clause 3(g) of the Notification No.41/2012-ST dated 29.6.2012 along with the Explanation is declared as being ultra vires Section 83 of the Finance Act read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 is a private limited company having its place of business at Porbandar. The writ-applicant no.2 is a Director of the private limited company. (2) The writ-applicants are engaged in the business of trading of Bauxite. The writ-applicants, inter alia, are also engaged in the business of export of goods outside the country. (3) The writ-applicants exported 54,200 metric tonnes of Metallurgical Bauxite of Indian origin through the vessel M.V. Diamond Star. The shipping bill was filed at the office of the Superintendent of Customs House, Okha, on 12.2.2013. (4) The Customs House issued a Let Export order under the Customs Act, 1961, on 15.2.2013. Such order permitting to export was issued under Section 51 of the Customs Act, 1961 (for short, the Customs Act ). (5) While the Let Export order was issued on 15.2.2013, it is not in dispute that the goods were loaded onto the vessel on 19.2.2013 and the vessel actually started its journey for sailing outside the country on 20.2.2013. The bill of lading was issued to the writ-applicants by the shipping company on 20.2.2013. (6) The writ-applicants believed that since the goods actually left the country on 20.2.2013, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the refund claim documents and that he had asked him to come with further documents which were found to be required. The officer, however, denied in the affidavit that he did not agree to give acknowledgment on the refund application. (13) The respondent no.3, by order dated 27.8.2014, rejected the refund claim of the writ-applicants as being time-barred. Insofar as the limitation period was concerned, it was held that once the Explanation to the Notification provided for time limit of one year from the date of let export order, then Section 11B could not be taken into consideration. Insofar as the facts of the writ-applicants are concerned, while it was recorded that it is an admitted position that the writ-applicants did approach the Superintendent with the refund claim on 10.2.2014, since acknowledgment on the claim was obtained only on 18.2.2014, it was held that that the refund claim was time-barred. (14) The writ-applicants filed statutory appeal for challenging the order in original. The appellate authority, however, dismissed the appeal and affirmed the order rejecting the refund. (15) The writ-applicants filed revision application before the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In the alternative, it was submitted that it is not disputed by the respondents that the representative of the writ-applicants did visit the office of the respondent no.3 with the refund claim on 10.2.2014. In fact, this is admitted by the Superintendent in the affidavit filed during the course of the adjudication. However, since the refund claim was allegedly short of the documents, the representative was sent back and, ultimately, the refund application was acknowledged on 18.2.2014. The acknowledgment of the refund application will relate back to 10.2.2014, which is the date on which the writ-applicants first approached the respondents along with the refund claim and, therefore also, the refund application can be said to be within the statutory period of limitation. SUBMISSIONS ON BEHALF OF THE RESPONDENTS : 5. Mr.Utkarsh Sharma, the learned standing counsel appearing on behalf of the respondents has made the following submissions : (a) Since the refund application is filed under the Notification No.41/2012-ST dated 29.6.2012, the period of limitation as stipulated under such notification in clause 3(b) thereof will apply and, hence, the refund application has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : **** **** **** Explanation . - For the purposes of this section, - (A) 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; (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, 10. It can be seen from the aforesaid that the refund application is to be filed within one year from the relevant date and the expression relevant date in the context of export by sea or air is defined as the date on which the ship or the aircraft in which the goods are loaded leaves India. It is to be further noted that as per clause (A) of the Explanation, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, a rule framed thereunder even in case of conflict must give way to the substantive statute. It is a well-settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail inasmuch as delegated legislation must be read in the context of the primary/legislative Act and not vice versa. 15. Similar observations were made by the Supreme Court in the case of Deputy Commercial Tax Officer vs. Sha Sukraj Peerajee, AIR 1968 SC 67, which read thus : 5. The first question to be considered in this appeal is whether Rule 21-A is intra vires of the power of the State Government under Sections 19(1) and (2) of the Act. Section 3(1) of the Act is the charging section. It imposes a liability to pay Sales Tax on every dealer for each year, and the tax is to be calculated on his total turnover for that year. Section 2(b) of the Act defines a dealer as a person who carries on the business of buying, selling goods . The word turnover is defined in Section 2(i) of the Act to mean the aggregate amount for which goods are either bought or sold by a dealer, whether for cash or for deferred payment or other valuable co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise Act. However, clause (B) of Explanation to Section 11B of the Excise Act is by itself very clear. The period of limitation is to commence from the date when the ship leaves India. The impugned clause of the Notification is thus not in the nature of clarification but in fact is in direct conflict with the statutory provision and, therefore, the same is ultra vires. 18. Since the acknowledgment of the refund application was given on 18.2.2014, i.e. within one year from the date when the ship left India, i.e. on 20.2.2013, such refund application being within the period of limitation as stipulated under Section 11B of the Excise Act could not have been rejected as being barred by limitation. 19. Even the alternative contention of the writ-applicants merits acceptance. The Let Export order was passed under the Customs Act on 15.2.2013 and, therefore, as per the say of the respondents, the time limit for filing the refund application would expire on 14.2.2014. It is not disputed by the respondents that the representative of the writ-applicants went to the concerned officer along with the refund claim on 10.2.2014. However, since the refund claim was short of the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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