TMI Blog2022 (12) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applicable at all as contended on behalf of the appellant. Merely because there is no reference of Section 11B of the Act either in Rule 18 or in the notification dated 6.9.2004 on the applicability of Section 11B of the Act, it cannot be said that the parent statute Section 11B of the Act shall not be applicable at all, which otherwise as observed hereinabove shall be applicable with respect to rebate of duty claim. The issue involved in the present appeal is squarely covered by the decision of this Court in the cases of Mafatlal Industries Ltd. [ 1996 (12) TMI 50 - SUPREME COURT ] and Uttam Steel Limited [ 2015 (5) TMI 214 - SUPREME COURT ]. After taking into consideration Section 11B of the Act and the notification and procedure under Rule 12, it is specifically observed and held that rebate of duty of excise on excisable goods exported out of India would be covered under Section 11B of the Act. After referring to the decision of this Court in the case of Mafatlal Industries Ltd., it is further observed in the case of Uttam Steel Limited that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. It is observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 Rules ) in respect of these exports. Subsequently on 14.02.2017, for the period October 2015 to March 2016, the appellant claimed rebate of Rs. 1,47,27,766/-. 2.1 The original authority rejected the above-mentioned rebate claims as barred by time prescribed under Section 11B of the Act vide three different Orders-in-Original. Aggrieved by the respective Orders-inOriginal rejected the respective claims as barred by time prescribed under Section 11B of the Act, the appellant preferred writ petitions before the learned Single Judge. The learned Single Judge vide common order dated 22.11.2019 dismissed the said writ petitions holding that the claims for rebate were made beyond the period of one year prescribed under Section 11B of the Act. The judgment and order passed by the learned Single Judge has been confirmed by the Division Bench of the High Court by the impugned judgment and order in Writ Appeal No. 249/2020. Hence, the present appeal. 3. Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant has made the following contentions in support of his submission that for rebate claim, the period prescribed under Section 11B of the Act shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was introduced; vii) that there is a vast difference and distinction between the refund of duty and the rebate claim; and viii) that as Rule 18 is a special provision for the grant of rebate of duty, general provision of Section 11B of the Act which is for refund of duty shall not be applicable. Reliance is placed on the decision of this Court in the case of Collector of Central Excise, Jaipur v. Raghuvar (India) Limited, (2000) 5 SCC 299 = 2000 (118) ELT 311 (SC). 3.1 Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant has heavily relied upon the observations made in paragraphs 13, 14 17 of the decision in the case of Raghuvar (India) Limited (supra), in support of his submission that Section 11B of the Act shall not be applicable while considering the claim for rebate of duty. Shri Datar, learned Senior Advocate has also relied upon the following decisions of the High Courts of Madras, Allahabad, Punjab Haryana and Rajasthan taking the view, after following the decision of this Court in the case of Raghuvar (India) Limited (supra), that the claim for rebate of duty under Rule 18 of the 2002 Rules is different and distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant has submitted that the object and purpose of the rebate of duty on export of goods can be termed as incentive to boost the export and earn foreign remittance. It is submitted that therefore if such a claim for rebate of duty is denied despite earning foreign remittance on the goods exported on such technical grounds, it may defeat the object and purpose for grant of rebate. 3.5 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeal. 4. The present appeal is vehemently opposed by Shri Siddhant Kohli, learned Advocate appearing on behalf of the revenue. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of the revenue that as such the issue involved in the present case is squarely covered by the decision of this Court in the case of Uttam Steel Ltd. (supra). It is submitted that in the case of Uttam Steel Ltd. (supra), it is specifically observed and held by this Court that the period of limitation prescribed under Section11B of the Act shall be applicable with respect to rebate of duty. It is submitted that after considering the decision of this Court in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and notification dated 6.9.2004 can be said to be a subordinate legislation. Notification dated 6.9.2004 which has been issued in exercise of powers under Section 37 of the Act provides for procedure . It is submitted that as per Section 37(xxiii) of the Act, the Central Government may make rules to specify the form and manner in which application for refund shall be made under Section 11B of the Act. It is submitted that in exercise of such powers, notification dated 6.9.2004 has been issued in exercise of powers conferred under Rule 18 of the 2002 Rules. 4.5 It is further submitted that Rule 18 cannot be read in isolation. It is further submitted that Rule 18 being subordinate legislation cannot override the main statute. It is submitted that notification dated 6.9.2004 cannot be read de hors the statute and Section 11B of the Act. 4.6 It is further submitted that the rebate of duty is an export incentive benefit granted under the subordinate legislation and any such benefit has to be governed by the statute. 4.7 It is further submitted by the learned counsel appearing on behalf of the revenue that the decision of this Court in the case of Raghuvar (India) Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Madras High Court in the case of Hyundai Motors India Ltd. (supra) and the decision of the Bombay High Court in the case of Everest Flavours Ltd. (supra), it is prayed to dismiss the present appeal. 5. In rejoinder, Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant has submitted that if the contention on behalf of the appellant that the period of limitation of one year prescribed under Section 11B of the Act shall not be applicable with respect to rebate claim is accepted, in that case also, the exporter has to make an application within a reasonable time. 6. We have heard Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant and Shri Siddhant Kohli, learned Advocate appearing on behalf of the Revenue at length. The short question which is posed for consideration of this Court is, whether the claim for rebate of duty provided under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1994 shall be applicable or not? 7. It is the case on behalf of the appellant that as in Rule 18 of the 2002 Rules and notification dated 6.9.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise and interest, if any paid on such duty] paid by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (e) the [duty of excise and interest, if any paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (f) the [duty of excise and interest, if any paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; [(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] [(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B of the Act is a substantive provision in the parent statute and Rule 18 of the 2002 Rules and notification dated 6.9.2004 can be said to be a subordinate legislation. The subordinate legislation cannot override the parent statute. Subordinate legislation can always be in aid of the parent statute. At the cost of repetition, it is observed that subordinate legislation cannot override the parent statute. Subordinate legislation which is in aid of the parent statute has to be read in harmony with the parent statute. Subordinate legislation cannot be interpreted in such a manner that parent statute may become otiose or nugatory. If the submission on behalf of the appellant that as there is no mention/reference to Section 11B of the Act either in Rule 18 or in the notification dated 6.9.2004 and therefore the period of limitation prescribed under Section 11B of the Act shall not be applicable with respect to claim for rebate of duty is accepted, in that case, the substantive provision Section 11B of the Act would become otiose, redundant and/or nugatory. If the submission on behalf of the appellant is accepted, in that case, there shall not be any period of limitation for making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislation to dispense with the requirements of Section 11B. The aforesaid observations made by this Court in the case of Uttam Steel Limited(supra) clinches the issue. The said decision has been subsequently rightly followed by the Madras High Court in the case of Hyundai Motors India Limited (supra). 13. Now so far as the reliance placed upon the decision of this Court in the case of Raghuvar (India) Ltd. (supra), relied upon by the learned senior counsel on behalf of the appellant is concerned, on considering the relevant provisions of Central Excise Act, namely, Sections 11A 11B of the Act, we are of the opinion that the said decision shall not be applicable with respect to the period of limitation prescribed under Section 11B of the Act with respect to claim for rebate of duty. The question involved in the Raghuvar (India) Ltd. (supra) was with respect to recovery of Modvat wrongly availed. In that case, it was the manufacturer who claimed the benefit under Section 11A of the Act by stating that no recovery could be made beyond the period of one year limitation under Section 11A of the Act. This Court negated that claim by observing that recovery contemplated under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MODVAT credit wrongly availed of or utilised in an irregular manner under Rule 57-I would be governed by the period of limitation of six months (at the relevant time) prescribed in Section 11A. The Supreme Court noted that Section 11A is not an omnibus provision which provides any period of limitation for all or any and every kind of action to be taken under the Act or the Rules but would be attracted only to cases where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded. The judgment of the Supreme Court holds that Rule 57-I envisages disallowance of the credit and consequential adjustment in the credit account or the account current maintained by the manufacturer and it is only if such adjustments are not possible, that an amount equivalent to the credit illegally availed of could be recovered. Consequently Rule 57-I, it was held, could not involve a case of manufacture and removal of excisable goods without subjecting such goods to levy or payment in the various circumstances enumerated in Section 11-A. Hence, on its own terms, it was held that Section 11A will have no application or operation to cases covered under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has already been considered hereinabove. 10. In exercise of the powers conferred by Rule 18, the Central Government has issued a Notification3. The Notification prescribes the conditions and limitations upon which a claim for rebate can be granted. Among the conditions and limitations under Clause (2) of the Notification is the requirement that the excisable goods shall be exported within six months from the date on which they were cleared from the factory of manufacture or warehouse. The procedures are stipulated in Clause (3). Sub-clause (iv) provides for the sealing of goods intended for export, at the place of dispatch and the exporter shall present goods along with four copies of an application in Form ARE-I specified in the Annexure to the Notification to the Superintendent or Inspector of Central Excise having jurisdiction over the factory of production or manufacture or warehouse. Sub-clause (v) then stipulates that the Superintendent or Inspector shall verify the identity of goods mentioned in the application, the particulars of the duty paid or payable and if found in order, shall seal each package or the container and endorse each copy of the application in token ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant date from which the period of three months has to be reckoned. If the submission of the petitioner were to be accepted, viz. that the mere presentation of the ARE-1 form would constitute an application for rebate of Central Excise Duty, that would defeat the whole scheme that has been enunciated in Section 11B and Section 11BB. Before the application for rebate can be allowed, an exporter has to furnish various documents including a request on the letterhead of the exporter containing a claim for rebate, the ARE-1 numbers and dates, corresponding invoice numbers and dates, the original copy of the ARE-1, invoice issued under Rule 11, self-attested copy of shipping bill and self-attested copy of bill of lading together with a Disclaimer Certificate in case where a claimant is other than the exporter. These requirements have been spelt out in para 8.3 of the CBEC Excise Manual. The mere presentation of an ARE-1 form does not, therefore, constitute the filing of a valid application for rebate. An application for refund has to be filed, together with documentary material as required. We, therefore, do not accept the second submission which has been urged on behalf of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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