TMI Blog2004 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. 11/11/94-CX, dated 21-9-1994 issued under sub-section (2) of Section 5A of the Central Excise Act. The ad hoc exemption was valid up to 30-6-1995. On 17-11-1994, the Steel Plant of SAIL preferred a claim for refund of duty of Rs. 3,27,41,476/- to the proper officer of Central Excise in respect of the coin blanks supplied for the period 1-1-1994 to 12-10-1994. In a show cause notice dated 3-4-1995, the Assistant Commissioner proposed to reject as time-barred a part of this claim, to the extent of Rs. 1,17,94,674/- relating to the period 1-1-1994 to 17-5-1994. This proposal was resisted by the Steel Plant in their reply to the show cause notice, contending that, as the refund claim was filed promptly after receiving the ad hoc exemption order of the Government and the intention of the Govt., obviously, was to exempt coin blanks from payment of duty, it was not proper to reject any part of the claim as time-barred. The Assistant Commissioner, in adjudication of the dispute, rejected the refund claim as time-barred (under Section 11B of the Central Excise Act) to the extent of Rs. 1,17,94,645/- for the period 1-1-1994 to 17-5-1994 and sanctioned refund of Rs. 51,49,421/- fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Tribunal's decision in Aeronautical Development Agency v. Commissioner of Customs [2001 (133) E.L.T. 685] wherein a claim made on 17-2-1995 for refund of Customs duty paid on goods imported in 1993, on the basis of an ad hoc exemption order issued by Government under Section 25(2) of the Customs Act on 10-1-1995 was held not time-barred and was accordingly allowed. 3. Ld. Counsel submitted that, in the facts of this case, it was impossible to apply for refund within six months from the date of payment of duty as the ad hoc exemption order was issued by Government providing cause of action for refund after six months from the said date. In such exceptional circumstances, it was permissible to by-pass the limitation provisions of Section 11B. To buttress this point, ld. Counsel quoted from "A SELECTION OF LEGAL MAXIMS" (by Herbert Broom) and argued thus: "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him". In the instant case, the retrospective exemption in respect of the coin blanks supplied from January 1994 was granted only on 30-6-1995, more than s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shakti Beverages Ltd. v. CC - 2003 (153) E.L.T. 445 (Tri. - LB) It was also pointed out by ld. SDR that the time-limit for a refund claim based on an ad hoc exemption order of Central Govt. under the Customs Act was held to be computable from the date of payment of duty and not from the date of the ad hoc exemption order, in the case of Ion Exchange (I) Ltd. v. CC - 1991 (56) E.L.T. 454 (T). Reliance was also placed on the Tribunal's decision in K. Viswanathan v. CC - 1990 (50) E.L.T. 301 (T), which was relied on in Ion Exchange (supra). It was, further, argued that any retrospectivity of such exemption orders was subject to the time-bar prescribed under the Act. In this connection, ld. SDR sought to draw support from the Supreme Court's judgment in J.K. Spinning and Weaving Mills Ltd. Another v. Union of India Others [1987 (32) E.L.T. 234 (S.C.)]. 5. After the hearing in the case was concluded, the Registry received a request from the appellants for placing before us the Calcutta High Court's decision in Assistant Collector of Central Excise, Calcutta v. Bata Shoe Co. (P) Ltd. - 2004 (169) E.L.T. 3 (Cal.) for consideration in the case. Regarding this, the SDR was put to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the preamble reads thus: "To keep the overall value of coins within their face value, Department of Economic Affairs has requested for exemption from payment of excise duty on the indigenously manufactured stainless steel coin blanks". The Government, by an order dated 30-6-95 issued to the Commissioner of Central Excise, Coimbatore, amended the above exemption order by adding the following paragraph to it: "This ad hoc exemption order is applicable to the entire quantity of 2640 MTs of stainless steel coin blanks supplied to the Govt. of India by M/s. Salem Steel Plant and therefore applicable to the clearances already made from January, 1994 onwards until 31-7-1995." The amending order also extended the period of validity of the ad hoc exemption up to 31-7-1995. The appellants had paid duty on the coin blanks cleared to the Mint under the Ministry of Economic Affairs from 1-1-1994 to 12-10-1994. They claimed refund of the entire duty on the strength of the above ad hoc exemption. The authorities below have rejected the claim of refund for the period 1-1-1994 to 17-5-1994 as time-barred under Section 11B of the Central Excise Act, after finding that the claim for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t claim equity. Equitable considerations are irrelevant to the law of limitation as observed in Kashmir Conductors (supra). 8. Under Section 11B of the Central Excise Act, as this provision stood at the material time, a refund claim should have been filed within a period of six months from the "relevant date". Relevant date was defined under the Explanation to the Section. This definition reads as under :- "(B) "relevant date" means, - (a) in the case of goods exported out of India… … (b) in the case of goods returned for being remade… … (c) in the case of goods to which banderols are required to be affixed… … (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…… (e) in the case of a person, other than the manufacturer....... (f) in any other case, the date of payment of duty. [Emphasis added]. Clause (f) above was applicable to refund claims like the subject claim prior to 28-9-1996. From this date, the applicable provision is Clause (ea) which was inserted with effect from 28-9-1996 under Section 77 of the Finance (No. 2) Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s difficult to believe that they were not aware of the move for obtaining such exemption from Government. Of course, it was the Department of Economic Affairs that requested for the exemption in respect of coin blanks vide preamble to ad hoc exemption order dated 21-9-1994. Under the relevant contract, SAIL's Steel Plant had to supply the coin blanks to the Mint under the Department of Economic Affairs. SAIL and the Department of Economic Affairs being contracting parties and SAIL being the beneficiary of any exemption from payment of duty on the coin blanks, the request made by the Department of Economic Affairs for ad hoc exemption must have been, at least, known to SAIL. The appellants can hardly justify their plea of ignorance about the move for ad hoc exemption in respect of the coin blanks manufactured and supplied by them. In the above circumstances, it has to be inferred that the appellants were aware of the above move, but yet they did not protest while paying duty on the coin blanks for a prospective refund. In any case, the undisputed fact is that their payment of duty was not under protest and therefore they were not 'excused' by the law of limitation. 10. The strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applying them effect must be given to the strict grammatical meaning of the words used by them". We find that this law laid down by the Apex Court four decades ago has been consistently applied by the Court vide, for instance, Doaba Co-Operative Sugar Mills (supra). It is the same rule of construction that has been followed by the Tribunal's Larger Benches in the aforesaid cases. This rule has to be followed in the instant case too. The rejected claim of refund in this case relates to a period prior to 28-9-1996 and, therefore, in respect of such claim, the relevant date is the date of payment of duty in terms of clause (f) of the Explanation to Section 11B. This provision was binding on the Revenue authorities and, therefore, they rightly rejected the refund claim, which was beyond the period of six months from the date of payment of duty. 11. Ld. Counsel has relied on the Supreme Court's judgment in the case of Belapur Sugar Allied Industries (supra) wherein it was held: "Even if duty is paid under ignorance of law or otherwise, if by subsequent legislation or valid Notifications the obligation to pay the duty is withdrawn, it cannot be refused since he has already paid the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misconception. On the other hand, the Court held, the payment of duty was of a purely compulsive mode of recovery by the Revenue on the basis of misconception of the Revenue authorities, which was clarified by the Board in the aforesaid letter. On this basis, it was held that the limitation provisions of Rule 11 ibid had no application to the refund claim. According to the present appellants, the ratio of the High Court's decision is in support of their plea that the limitation provisions of Section 11B are not applicable to the refund claim in question. The Revenue, through ld. SDR, has rebutted this argument by correctly distinguishing the instant case from the Bata Shoe Company case. We also do not find any parallel between the two cases. In the Bata Shoe Company's case, the payment of duty was under protest right from the beginning, whereas in the instant case the duty was not paid under protest. Again, in the Bata Shoe Company's case, the Board's letter was held to be a clarification of the prevailing law, whereas in the instant case the ad hoc exemption order issued by the Central Government under Section 5A(2) of the Central Excise Act operated in an entirely different way. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive effect, which could become a potential weapon for the Revenue to raise demands of duty for past period up to 28-2-1944. It was argued by the assessee that, if the department reopened the past assessments for raising such demands, it would be harsh for them. This apprehension was rejected by their Lordships who observed that any such demand would be subject to the time-bar provisions of Section 11A of the Act. Ld. SDR has argued that, just as a retrospective demand of duty is subject to limitation under Section 11A, a refund claim based on retrospective exemption should be subject to time-bar under Section 11B. We appreciate this argument and observe that J.K. Spinning Weaving Mills (supra) is yet another assertion, by the Apex Court, of the rule of strict construction and application of limitation provisions. 14. We have made a mention of the Modvat credit issue raised in this case. This issue has already been settled by this Bench as per Final Order No. 1701/01, dated 28-9-2001 in Appeal No. E/1896/97-Md. reported in 2002 (139) E.L.T. 415 (Tri. - Chennai) [Steel Authority of India v. Commissioner of Central Excise, Coimbatore] whereby denial of Modvat credit to the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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