TMI Blog2008 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... acts as narrated are taken from the said petition. 3. The petitioner, a partnership firm, is engaged in the business of manufacturing and exporting chemicals manufactured. It is the case of the petitioner that on 27-5-2001 five consignments of manufactured goods were exported. In terms of Rule 12(1)(a) of the Central Excise Rules, 1944 and Rule 18 of the Central Excise Rules, 2002, respectively, the petitioner preferred rebate claims. Such rebate claims had to be accompanied by an export promotion copy of the shipping bill duly endorsed by the Customs authorities evidencing proof of export. The said claims were filed on 29-7-2002 and 16-8-2002. On 30-9-2002 the petitioner was served with a Show Cause Notice proposing to reject the rebate claims as the claims were found to be beyond the statutory period of limitation prescribed under Section 11B of the Central Excise Act, 1944 (the Act). Vide Order-In-Original dated 15-1-2003 the claims made by the petitioners were rejected. 4. The matter was carried in Appeal by the petitioner and vide order dated 28-8-2003 Commissioner (Appeals) allowed the appeal by recording as under: 'I have carefully considered the facts on record an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents are not available because of laxity on the part of dept. over which they have no control. Para 2.4 of chapter 9 of the Central Excise Manual provides answer to this question. It says that in case of non-availability of any document due to reasons for which the Central Excise or Customs dept. is solely accountable, the claim may be admitted that the claimant is not in disadvantageous position with respect to limitation period. In other words, in such situation, incomplete claim is to be filed by the claimant within the time limit and it is to be admitted by the dept. so that the claim will not be hit by time bar, subsequently.' 6. It is the case of the petitioner that the Revisional Authority has erred in reading the provisions of Section 11B of the Act as well as paragraph No. 2.4 of chapter IX appearing in Central Board of Excise and Customs, Excise Manual of supplementary Instructions (CBEC Manual) for New Excise Procedure as on 1-9-2001. That in fact, in a case where an assessee is prevented from making a claim within the prescribed period of limitation due to non-availability of relevant document from the Central Excise or Customs Department, and where such department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise or before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by, him and the incidence of such duty had not been passed on by him to other person' 9. On a plain reading of it can be seen that the section provides for making a claim for refund of duty (which includes rebate of duty) but such a claim has to be made before the expiry of one year from the relevant date. The application has to be in the form and manner as prescribed and the application shall be accompanied by such documentary or other evidence which will enable the applicant to establish that the amount of duty of excise in relation to which such refund/rebate is claimed was collected from, or pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to delay in sanction of the refund. Moreover, the claimant of refund is entitled for interest in case refund is not given within three months of the filing of claim. Incomplete claim will not be in the interest of the Department Consequently, submission of refund claim without supporting documents will not be allowed. Even if claim is filed by post or similar mode, the claim should be rejected or returned with Query Memo (depending upon the nature/importance of document not filed). The claim shall be taken as filed only when all relevant documents are available. In case of non-availability of any document due to reasons for which the Central Excise or Customs Department is solely ac countable, the claim may be admitted so that the claimant is not in disadvantageous position with respect to limitation period.' 13. It is the last sentence of the aforesaid sub-paragraph which has generated the present controversy. The case of the petitioner is that the said sentence viz, commencing with the words "in case of' non-availability of any document and ending with the words 'with respect to limitation period' indicates that the normal rule that a claim application should be accompan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid terms are significant and indicative. On reading of the entire sub-paragraph No. 2.4 it becomes clear that a claim which is deficient in any manner shall not be taken as filed (emphasis supplied) and shall be taken as filed only when all relevant documents are available. As against that the latter part talks of the claim being admitted with respect to limitation period. The legislature has not stated that claim may be admitted so that the claimant is not put in a disadvantageous position 'within the limitation period' but the words used are 'with respect to limitation period'. In other words, the intention that flows from a plain reading of the language employed is that an exception is provided for in cases where a claim application cannot be tendered for want of requisite documents and such lapse is on account of non availability of such documents due to the department being solely accountable. In such circumstances, an assessee cannot be put to disadvantage by asking the assessee to tender a deficient claim within the period of limitation and simultaneously treat the claim as not having been filed till the point of time all relevant documents are available. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be put to disadvantage on the ground of limitation when the assessee is not in a position to make a claim without accompanying documents. 19. The position in law is well settled that any procedure prescribed by a subsidiary legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. In the present case obtaining of an endorsed copy of shipping bill is primarily a procedural requirement and such procedure is not within the control of claimant-assessee. 20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of Section 11B of the Act read with paragraph No. 2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents i.e. from the said point of time. 21. The view adopted by the Revisional Authority that a departmental authority is bound by the prescribed period of limitation and cannot condone any del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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