2017 (12) TMI 1666 - CGOVT - Central Excise

Government rejects Revision Applications, upholds Assistant Commissioner & Commissioner orders for non-compliance with Notification No. 21/2004-C.E.

The Government rejected the Revision Applications, affirming the orders of the Assistant Commissioner and Commissioner (Appeals). The claims were rejected ... Rebate claim - time limitation - rejection on the ground of failure to submit pre-intimation to the Jurisdictional Assistant Commissioner regarding input-output ratio and its prior approval under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2006 - rejection also due to re-submission of the rebate claims beyond the period of one year as specified under Section 11B of Central Excise Act - Held that:- The applicant had withdrawn their earlier filed rebate claims from the Division office on their own volition and same were filed later on by which the one year limitation period as specified in Section 11B of the Central Excise Act was already over - The Commissioner (Appeals) has observed in her order that the refund claims were withdrawn suo motu and department did not issue any deficiency note. Hence it amounts to non-filing of the rebate claims on the earlier dates and the claims submitted later on cannot be treated as the same claims which were filed earlier. The Government does not find any error in the above observation of the Commissioner (Appeals) in the face of the facts of the present proceeding and, therefore, the rebate claims are manifestly hit by limitation of one year as already held by the Assistant Commissioner and Commissioner (Appeals) in their order. The refunds and rebate of duty Section 11B of the Central Excise Act is directly dealing statutory provision and it is clearly mandated therein that the application for refund of duty is to be filed with the Assistant/Deputy Commissioner of Central Excise before expiry of one year from the relevant date. Further in explanation in this Section, it is clarified that 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. In addition to time limitation, other substantive and permanent provisions like the authority who has to deal with the refund or rebate claim, the application of principle of undue enrichment and the method of payment of the rebate of duty, etc. are prescribed in Section 11B only - Since the time limitation of 1 year is expressly specified in Section 11B and as per this section refund includes rebate of duty, the condition of filing rebate claim within 1 year is squarely applicable to the rebate of duty when dealt by Assistant/Deputy Commissioner of a Division under Rule 18. Thus Section 11B and Rule 18 are interlinked and Rule 18 is not independent from Section 11B. Non-observance of the conditions of Notification No. 21/2004-C.E. (N.T.) - Held that:- Considering the facts and especially the non-compliance of the condition of the letter dated 18-4-2011 despite of five letters to the applicant by the Range Superintendent, it is evident that non-submission of input-output ratio in respect of each export consignment in time is not a procedural and bona fide lapse only. The Assistant Commissioner in his order has clearly concluded that it was not an inadvertent mistake and rather the claimant knowingly and willingly had not followed the condition of the permission even after repeated reminders to them to follow the condition. The Government does not find any error in the order of the Commissioner (Appeals) - revision application dismissed. Issues Involved:1. Failure to submit pre-intimation to the Jurisdictional Assistant Commissioner regarding input-output ratio and its prior approval under Notification No. 21/2004-C.E. (N.T.), dated 6-9-2006.2. Re-submission of rebate claims beyond the period of one year as specified under Section 11B of the Central Excise Act.Issue-wise Detailed Analysis:1. Failure to Submit Pre-Intimation:The applicant argued that they had informed the jurisdictional Assistant Commissioner about their intention to claim rebate of duty under Notification No. 21/2004-C.E. via a letter dated 8-3-2011, which was permitted on 18-4-2011. However, the letter dated 8-3-2011 did not specify the name of the product, classification, or rate of duty, and the Assistant Commissioner’s permission was conditional, requiring verification of the input-output ratio at the time of manufacturing and export. Despite repeated requests from the Range Superintendent, the applicant did not comply with this condition. The goods were exported under self-sealing procedures, making it impossible to verify the actual nature of the exported goods and the inputs used. The Assistant Commissioner concluded that the non-compliance was intentional, not a procedural lapse. Therefore, the Government found no error in the rejection of the claims on these grounds.2. Re-Submission of Rebate Claims Beyond One Year:The applicant contended that the delay in submitting intimation was a procedural lapse and that the claims were based on a declaration made on 8-3-2011. They argued that the limitation period of one year under Section 11B of the Central Excise Act was not applicable to their case. However, the applicant had withdrawn their rebate claims and re-submitted them after the one-year limitation period had expired. The Commissioner (Appeals) observed that the claims were withdrawn suo motu without any deficiency note from the department, thus amounting to non-filing of the claims on the earlier dates. The Government upheld this observation, noting that Section 11B clearly mandates a one-year period for filing rebate claims. The applicant’s reliance on the CESTAT decision in Banco Products India Ltd. v. CCE, Vadodara, was found to be unsupported by legal provisions. The Government emphasized that Section 11B and Rule 18 of the Central Excise Rules are interlinked, and the one-year limitation period is applicable to rebate claims. The Bombay High Court’s decision in M/s. Everest Flavour v. Union of India was cited, which held that Rule 18 cannot be independent of the limitation prescribed in Section 11B. The Government found the applicant’s argument legally untenable and upheld the rejection of the claims on the grounds of limitation.Conclusion:The Government rejected the Revision Applications, affirming the orders of the Assistant Commissioner and Commissioner (Appeals). The claims were rejected due to non-compliance with Notification No. 21/2004-C.E. and the one-year limitation period under Section 11B of the Central Excise Act.