TaxTMI 
TaxTMI 
2011 (12) TMI 540
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....th respect to such supply of fuel, the Air India apparently refused to pay the excise duty on the ground that such duty was not required to be paid. Upon such development, the petitioner filed refund claims with the Departmental Authorities on 22nd March 2007. After one round of orders, the Adjudicating Authority issued a show cause notice dated 22nd October 2007 calling upon the petitioner to state why such refund claim of Rs. 6,93,914/- should not be rejected. Tentative reasons for the authority to issue such notice were two. Firstly, the authority was of the opinion that the refund claims were belated and therefore in breach of the limitation provisions contained in section 11B of the Central Excise Act (Act for short) and secondly, that necessary documents evidencing the element of duty of excise having been paid on the goods were not produced. The petitioner replied to such notice. After hearing the petitioner, the Adjudicating Authority, however, by his order dated 7.1.08 rejected the refund claim. The Adjudicating Authority held as under: "I further find that the refund claim was filed on 22.3.2007 in respect of duty paid for the period from April 2005 to October, 2005. I....
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....t may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act: Provided further that the limitation of one year shall not apply where any duty has been paid under protest. xxxx xxxx Explanation : For the purpose this section - ... (B) "relevant date" means - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or,m as the case may be, the excise materials used in the manufacture of such goods - (i)if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii)if the goods are exported by land, the date on which....
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....the case of Vidushi Wires Pvt. Ltd v. Union of India, 2003 (156) E.L.T. 168 (Bom.) wherein the Bombay High Court discussed the aspects pertaining to interpretation of statutes in context of the statutory provisions being either mandatory or director in nature. (iii) Reliance was also placed on a Division Bench decision of this court in the case of Cosmonaut Chemicals v. Union of India, 2009 (233) ELT 46 (Guj.) wherein the refund claim of the assessee was held to be within time when on account of default on the part of the Customs Authorities necessary documents were not available which were required to be attached to the refund claim. (iv) Reliance was also placed on a decision of the Calcutta High Court in the case of Ashoka Industries v. Union of India, 1988 (38) ELT 3 (Cal.) wherein it was observed that "in the instant case, the petitioner came to know about the mistake when the Customs Tariff Amendment Bill 1982 came into force from 15.4.1982 and even if the limitation of six months is to be counted then also the application for refund on 11.10.1982 it cannot be said that the refund claim made by the petitioner is barred by limitation". On the other hand, learned couns....
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....supplied by the petitioner to Air India for its foreign going flight which left the country. In the present case, such supply was made on different dates between April 2005 and October 2005. Thus the refund claim which was filed on 22nd March 2007 was clearly beyond the period of one year. It thus clearly emerges that refund claim was made beyond the period of limitation prescribed under section 11B of the Act. We are unable to uphold the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of section 11B itself are sufficiently clear. Sub-section (1) of section 11B, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of one year from the relevant date. Remedy to claim refund of duty which is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority on sufficient cause being shown. Secondly, we find that the A....