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TMI Blog2023 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... t such reversal was not warranted, they filed a rebate claim which was registered in the division office under entry No.06- 02/2018-19 dated 14.06.2018. The refund claim has been rejected by the adjudicating authority as filed beyond the period of limitation and by the impugned order, Commissioner (Appeals) has upheld the order of the adjudicating authority and rejected the appeal filed by the appellant. Hence this appeal. 3.1 I have heard Shri Pradeep Korde, Advocate for the appellant and Shri P.K. Acharya, Superintendent, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- Appellant has acted for reversing the Cenvat credit against the reimported goods as directed by the jurisdictional Range Superintendent. The direction of the Superintendent cannot be a proper direction and he has merely traversed beyond his authority. Limitation of time as provided under Section 11B of the Central Excise Act, 1944 is not applicable in the present case as has been held by the decision in the case of - ITC Ltd. [1981 (8) ELT 690 (Kar)] ITC Ltd. [1985 (19) ELT 373 (Bom.)] Tribunal has also held so in the case of - Jain Irrigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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-section (2) of section 5A, the date of issue of such order:] [(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any effort to find out the authenticity of the debit made by them, which definitely would have come under the scanner of their statutory auditor. The appellant has not put forth any explanation as to how such duty debit has been reflected in their financial accounts as to whether these are shown as an 'amount' as claimed by them or otherwise. Hence there are sufficient reasons to believe that the appellant believed the conclusion of proceedings and it is only as an afterthought that they preferred refund claim by adopting a false pretence of not having paid any duty by them, which is being asked as refund. 5.6 The chronology of the events indicate that the appellant had paid the sums impugned herein on 28.04.2015. The refund application was made on 14.06.2018 on the ground as if the amounts paid by them were not a 'duty.. As discussed in the preceding Paras, the relevant date for filing refund would apply from the date of such payments which were prior to April, 2016. There is thus inordinate delay of over one year in filing the refund claim and the same has been rightly rejected by the lower authority and the same does not deserve any interference." 4.3 The pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable in respect of the claim of rebate of duty. 10. At this stage, it is to be noted that Section 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 beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has specifically observed that such argument has to be discarded as it is not open to subordinate legislation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue which fell for determination before the Supreme Court, inter alia, was whether action for the recovery of 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 shortpaid 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 11A. Hence, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Raghuvar which has been relied upon by the learned Single Judge of the Madras High Court has already been considered hereinabove. 10. In exercise of the powers conferred by Rule 18, the Central Government has issued a Notification. 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). Subclause (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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) of Section 11B. For the purpose of Section 11BB, presentation of the application is the relevant 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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