2017 (3) TMI 872

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.... 3. The issue that falls for consideration in this case is regarding the refund of rebate claim under the provisions of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 11/2005-ST. Both the lower authorities have rejected the refund of rebate claim on the ground that the said rebate claim have been filed beyond the period of one year as prescribed in Section 11B of the Central Excise Act, 1944 which is adopted for sanctioning of rebate claim under the Finance Act, 1994. It is the findings of the lower authorities that the provisions as per Section 11B of the Central Excise Act, 1944 are mandatory and refund of rebate claim filed beyond the period of one year has to be held as time barred. 4. We find that both the lower a....

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....ction 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 power of the Assistant Commissioner under sub-section (2) to order refund, is protected by a non obstante clause contained in sub-section (3). Incidentally, sub-section (2) does not specifically empower the Assistant Commissioner to reject an application summarily on the ground that it was not in accordance with mandate contained in sub-section (1). 12. Sub-section (5) of Section 11B speaks about the power of the Central Government to rescind or modify any notification. In the Explanation to sub-section (5) of S....

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....e as a consequence of any judgment, decree or order. This is perhaps the reason why the non obstante clause contained in sub-section (3) is specifically made applicable only to the power of the Assistant Commissioner to order refund under sub-section (2). It is not made applicable to sub-section (1) of Section 11B which stipulates the period of one year for filing a claim. 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....