TaxTMI 
TaxTMI 
2015 (4) TMI 118
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.... duty paid for the exported goods. The claim related to the exports made by the first respondent during the period from 01.7.2006 to 31.01.2007. 4. Therefore, contending that the rebate claim was not within the period of one year as prescribed in Section 11B of the Central Excise Act, 1994, the Assistant Commissioner of the concerned jurisdiction issued a show cause notice dated 24.6.2008, proposing to reject the claim. The first respondent submitted a reply on 24.7.2008, contending interalia: (1) that the company faced severe labour unrest, leaving certain items of work unattended; (2) that the factum of exports as per ARE-1 is clearly borne out by records; and (3) that therefore, the delay cannot be held against them. 5. However, the appellant herein, namely the Deputy Commissioner of Central Excise passed an Order-in-Original No.147/2008 dated 21.8.2008, rejecting the rebate claim as time barred. As against the said order, the first respondent filed a statutory appeal. But, the statutory appeal was also dismissed by the Commissioner (Appeals), who is the second respondent herein, by an order dated 30.7.2010, holding that there is no mechanism for condonation of delay. 6....
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....s it originally stood and the subsequent notification. 10. We have carefully considered the rival submissions. 11. In order to understand the scope of the dispute, it is necessary to look into the scheme of the Central Excise Act with particular reference to Section 11B. Section 11B primarily deals with a claim for refund of duty and interest if any paid on such duty. Sub-section (1) of Section 11B postulates that a person claiming refund of any duty of Excise may make an application for refund before the expiry of one year from the relevant date. While sub-section (1) postulates the entitlement of a person to seek refund, sub-section (2) outlines the power of the Assistant Commissioner to pass an order, determining the amount to be refunded and further directing that the amount so determined shall be credited to the Fund. Interestingly, sub-section (3) declares that notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provision of the Act or the Rules or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). In other words, the p....
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..... 15. Therefore, we are of the considered opinion that the view taken by the learned Judge that Rule 18 is to be construed independently, cannot be said to be wrong. Rule 18 of the Central Excise Rules,2002, by itself does not stipulate a period of limitation. Rule 18 reads as follows:- "Rule 18. Rebate of duty:- Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. Explanation:- "Export" includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft." 16. As rightly pointed out by the learned Judge, the rebate of duty under Rule 18 should be as per the notification issued by the Central Government. The Notification bearing No.19/2004 dated 6.9.2004 prescribes the conditions, limitations and procedures for considering the claim for refund. Under Clause 2(d) of the notification, the rebate claim may be....
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....he mandatory requirements on the one hand and the demand for payment to be made under Section 11-A in respect of any duty not levied or short levied. Therefore, the said decision can have no application to the case on hand, since we are not concerned here with a case of credit availed wrongly by an assessee. 20. In the decision of the Division Bench of the Gujarat High Court in Ashwin Fasteners, the Division Bench proceeded primarily on the basis of the observations of the Supreme Court in Mafatlal Industries Limited vs. Union of India [1997 (5) SCC 536]. The Division Bench did not go deep into the scheme of Section 11-B and the notifications issued under Rule 18, both in 1994 and in 2004. Therefore, with great respect we are unable to agree with the decision of the Gujarat High Court. 21. In Everest Flavours Limited, the Division Bench of the Bombay High Court actually distinguished the decision of the Supreme Court in Raghuvar (India) Limited, and held that Section 11-B stands on a different footing from Section 11-A. But the Division Bench of the Bombay High Court, with great respect, did not take note of the fact that a scheme stood on its own. Moreover, the discuss....
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....ection 25(1), no period of limitation was fixed in para 2(c) for the importer to file a claim for refund of the additional duty paid on imported goods. However, the said notification was later amended by Notification No.93/2008-Cus. dated 1.8.2008, incorporating in para 2(c), a period of limitation of one year. 26. If the prescription contained in the parent Act under Section 27(1) itself is considered to be sufficient, there was no necessity for the Central Government to issue amendment under the Notification dated 1.8.2008 to the original Notification dated 14.9.2007. Therefore, a claim for refund may have to be considered on a stand alone basis. 27. As a matter of fact, Section 27(1) of the Customs Act, 1962 actually stipulated two different periods of limitation. Section 27(1) reads as follows:- "27. Claim for refund of duty (1) Any person claiming refund of any duty and interest, if any, paid on such duty:- (a) paid by him in pursuance of an order of assessment; or (b) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs:- (a) in t....