TaxTMI 
TaxTMI 
2012 (10) TMI 690
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case of the petitioner that for the foreign bound flights such fuel would not attract excise duty. The petitioner had, however, mistakenly paid the same. Upon Air India raising objection to payment of excise duty, the petitioner came to realize the mistake and filed its refund claim on 14-8-07 of Rs. 4,38,705/-. The Adjudicating Authority issued show cause notice on 22nd October 2007 why such refund claim should not be rejected on the following grounds : "On scrutiny of the refund claim, it appears that the said refund claim is not sanctionable under the provisions of Section 11B of Central Excise Act, 1944 on the following grounds :- (i) that in respect of part of the refund claim of Rs. 34,462.14 perta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Authority dismissed the Revision by the impugned order. Hence this petition. 4. It is not in dispute that part of the refund claim is barred by the limitation prescribed under Section 11B of the Act. Refund claim which was filed on 14-8-07 could cover the period only upto 14-8-06 i.e. one year from the relevant date. The remaining claim, however, also is contested by the respondents on the ground that the petitioner failed to establish compliance with the mandatory requirements. On the other hand, the case of the petitioner is that the entire claim should have been adjudicated and granted. 5. With respect to the question of limitation, we have by a separate order passed in the case of this very petitioner in Special Civil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....into account the observations of the Apex Court in the case of Kirloskar Pneumatic Company (supra), it would become clear that the petitioner had to file refund claim as provided under Section 11B of the Act and even this Court would not be in a position to ignore the substantive provisions and the time limit prescribed therein. The decision of the Bombay High Court in the case of Uttam Steel Ltd. (supra) was rendered in a different factual background. It was a case where the refund clam was filed beyond the period of six months which was the limit prescribed at the relevant time, but within the period of one year. When such refund claim was still pending, law was amended. Section 11B in the amended form provided for extended period of l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ls (supra) [2009 (233) E.L.T. 46 (Guj.)], facts were peculiar. The assessee had to file certain documents in terms of Rule 18 of the Rules along with the claim for refund to be filed as provided under Section 11B of the Act. Such documents had to be supplied by the Customs Authorities. Customs Authorities delayed supply of such documents. It was on this ground that the petitioner therein could not file the refund claim within the time prescribed. The Bench therefore observed as under : "18. As noticed hereinbefore, provisions of Section 11B of the Act stipulate that a claim has to be accompanied by requisite documents, requisite documents in case of an assessee who has exported duty paid goods being copy of shipping bill duty endors....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned counsel for the parties, we find that there was several documents before the authorities and in particular the revisional authority, which would prima facie suggest that the petitioner had arguable case of linking the duty paid fuel being supplied for foreign pound flights. It is not even the case of the respondents that if such a case was established, the exemption notification would not apply. In other words, even the respondents agree that if the petitioner had supplied the excise paid fuel to Air India for its foreign bound flights as per the exemption notification, such duty ought to have been refunded. It is, however, the case of the respondents that the petitioner failed to establish this vital and important aspect. As pointed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lished that the petitioner has fulfilled the mandatory and substantive requirement of the rules and the notification, its refund claim should not be defeated on the ground of some procedural infraction or the documents not being supplied in the original at the outset. In other words, on the basis of available and reliable documents and the materials on record, if the petitioner is in a position to establish before the Revisional Authority that the excise duty though exempt was paid wrongly, surely its refund claim should be granted. With the above observations, the order passed by the Revisional Authority is set aside. For the purpose of reconsideration, the issue is placed back before the Revisional Authority. The Revision of the petiti....