TaxTMI 
TaxTMI 
2017 (6) TMI 1103
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....ver, it was noticed that 303 cars were subjected only to excise duty at 25% and the specific duty of Rs. 15,000/- per car was not levied in the excise invoice due to system error and thus, the ARE1 did not contain the said difference amount. Thereafter, the appellant fulfilled the payment of specific duty by way of debiting the CENVAT credit amount on 15.12.2008. Subsequently, the appellant filed rebate claim dated 27.11.2009 for refund of differential duty of excise amounting to Rs. 46,81,350/- paid by them on 15.12.2008 (at the rate of Rs. 15,000/- per car with education cess and secondary and higher education cess) for export of 303 Nos. of i20 cars under 19 ARE-1s. On scrutiny of application and documents, it was noticed that in respect of 10 ARE-1s, in which 187 cars were exported, left India on 11.11.2008 and 15.11.2008 and the rebate claim was filed only on 27.11.2009 i.e. after one year of the relevant dates (dates of export) as per section 11B of the Central Excise Act, 1944. The revenue issued show cause notice under C.No.IV/10/76/2009 R.F.LTU (LTG 1) dated 22.1.2010 to the appellant company as to why a part of their claim of Rs. 28,89,150/- pertaining the aforesaid 10 AR....
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....o no connection between the rebate claim filed under Rule 18 of the Central Excise Rules 2002 and Section 11B of Central Excise Act. Though short payment of duty was made due to error in system and the same was not noticed by the scrutinizing authority, such amount of duty was paid by the appellant company on its own, without any demand notice from the revenue, which itself shows the bonafide intention of the appellant. The learned Judge failed to consider that reliance was placed on Notification No.19/2004-CE (NT) dated 6.9.2004 and Rule 18 of Central Excise Rules, 2002. Both these provisions do not specify any time limit for the rebate of duty. The learned Judge erred in placing reliance on the decision rendered in the case of Union of India versus Uttam Steel Ltd., [2015 (319) E.L.T.598 (S.C.)] where the facts and circumstances are different from that of the present case. Inasmuch as the other conditions of the earlier notifications remain stand in the Notification No.19/2004-C.E.(N.T.), and no time limit has been prescribed in the Notification No.19/2004-C.E.(N.T.), the impugned order passed by the learned Judge is liable to be set aside. 4. Further, the learned counsel for ....
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....d of limitation has to be clearly stipulated and it is not for the Courts to import any specific period of limitation by implication. On the aforesaid backdrop, the learned counsel for the appellant would pray to set aside the impugned order of the learned Judge and consequently to direct the second respondent to allow the rebate claim. 7. On the contrary, Mr.A.P.Srinivas, learned Standing Counsel for the respondents would submit that the contention of the learned counsel for the appellant that Section 11B of the Central Excise Act, 1944 would not be applicable to the facts of the case on hand cannot be countenanced. The contention of the appellant that Rule 18A of the Central Excise Rules is independent one and Section 11B is an independent one and therefore, section 11B of the Central Excise Act, 1944 is not applicable, is misconceived. The aforesaid provision provides for claim of refund of Central Excise Duty and the interest paid. The learned Standing Counsel specifically pressed the relevant proviso (A) to section 11B which provides that refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of go....
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....relied on the other decision in the case of Commissioner of Central Excise, Coimbatore versus GTN Engineering (I) Ltd., reported in 2012 (281) E.L.T.185 (Mad.) and Ashwin Fasteners of Ashwin Panchal Versus Union of India. In the case of Delphi-TVS Diesel Systems Ltd., versus CESTAT, Chennai reported in 2015(324) E.L.T.270 (Mad.), this High Court has held that Rules, being subordinate legislation, cannot prescribe different period of limitation or different date of commencement of period of limitation. In the case of Ashwin Fastners of Ashwin Panchal versus Union of India reported in 2010 (258) E.L.T.174 (Guj.), Gujarat High Court has held that the authority has no power or jurisdiction to entertain the claim for refund after expiry of the period of one year from the relevant date. Therefore, in the light of the aforesaid decisions, the impugned order passed by the revenue is perfectly valid in the law. Therefore, no interference is warranted in the order passed by the Writ Court. 10. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondents and perused the materials on record. 11. The appellant in the above Writ Appeal exported 303 i20 c....
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...., as mentiond in the relevant export documents; together with the proof of due exportation within the time limit specified in section 11B of the Central excises and Salt Act, 1944 (1 of 1944). In Notification No.19/2004 dated 6.9.2004, no such time limitation is prescribed in the notification. Notification No.18/2016 amends Notification No.19/2004 dated 6.9.2004 wherein it reads as follows:- 18/2016-Central Excise (N.T.) dated : March 1, 2016. In exercise of the powers conferred by rule 18 of the Central Excise Rules, 2002, the Central Government hereby makes the following further amendments in the Notification Number 19/2004-Central Excise (N.T.), dated the 6th September, 2004, in the Ministry of Finance, Department of Revenue published in the Gazette of India, Extraordinary, Part II, Section3, Sub-section (I) vide number G.S.R. 570(E), dated the 6th September, 2004, namely: (2) under heading (3) Procedures in Paragraph (b), in sub-paragraph (I) after the words shall be lodged , the words figures, letter and brackets before the expirty of the period specified in section 11B of the Central Excise Act 1944 (1 of 1944) shall be inserted. 14. Therefore, the appellant co....
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....f goods by the Post Office concerned to a place outside India; 17. The appellant would strongly rely upon the decision in the case of Dy.Commissioner of Central Excise, Chennai, versus Dorcas Market Makers Pvt.Ltd., [2015 (321) E.L.T 45 (Mad.)]. This Court considered the similar issue of applicability of Rule 18 of the Central Excise Rules. The following paragraphs of the judgment are usefully extracted. 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 pr....
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....tion 11-A of the Act is not an omnibus provision and that the situation contemplated under Rule 57-I, as it stood unamended, did not fall under any of the contingencies provided for in Section 11-A of the Act. 19. As a matter of fact, the Supreme Court observed that there is a distinction between the recovery of credit availed of and utilised in utter breach of the faith and mutual trust and confidence and that too in gross violation of the 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. * * * 23. As we have pointed out earlier, the Scheme of Section 11-B has to be seen in the context of: (A) the enabling provision under sub-section (1) for filing an application for refund; (B) the power conferred under sub-section (2) upon the Assistant Commissioner to order refund; (C) the non-obstante Clause contained in sub-section (3) only with reference to sub-section (2); (D)....
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....e, chennai versus Dorcas Market Makers Pvt.Ltd., reported in 2015 (321) E.L.T.45 (Mad.) would be applicable to the facts of this case. The decision rendered in Collector v. Raghuvar [India] Ltd reported in 2000 (118) ELT 311 (SC) was considered in the decision of Dorcas Market Makers Pvt.Ltd's case, reported in 2015 (321) E.L.T.45 (Mad.). Paragraph 19 of the judgment reads as follows:- 19. As a matter of fact, the Hon'ble Supreme Court observed that there is a distinction between recovery of credit availed of and utilised in utter breach of the faith and mutual trust and confidence and that too in gross violation of the mandatory requirements on the one hand and the demand for payment to be made under Section 11A 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 herewith a case of credit availed wrongly by an assessee. 20. On the facts of this case, the appellant company made a claim before the authority under notification No.19/2004-CE(NT) dated 6.9.2004. It is not the case of the appellant that the revenue authority had initiated action for recovery of credit ....
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.... us to hold that the relevant date should be the date on which the export of the goods was made and for such goods, refund of CENVAT credit is claimed. 22. Against the decision of Dy.Commissioner of Central Excise, chennai versus Dorcas Market Makers Pvt.Ltd., reported in 2015 (321) E.L.T.45 (Mad.), the appeal filed by the revenue was dismissed at the admission stage. 23. In the recent Judgment of the Hon'ble Supreme Court, similar issue was considered in Union of India versus Uttam Steels Ltd., reported in 2015 (319) E.L.T. 598(S.C.), relevant paragraphs of the Judgment are extracted hereunder:- 12. And now to Shri Bagaria's argument. In order to understand the argument, we will set out Rules 12 and 13 of the Central Excise Rules together with the notification dated 22.9.1994. 12. Rebate of duty.- (1) The Central Government may, from time to time, by notification in the Official Gazette, grant rebate of-- (a) duty paid on the excisable goods; (b) duty paid on materials used in the manufacture of goods; if such goods are exported outside India or shipped as provision or stores for use on board a ship proceeding to a foreign....
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....s on which duty has not been paid.- (1) The Central Government may, from time to time, by notification in the Official Gazette- (a) permit export of specified excisable goods in bond without payment of duty in the like manner, as the goods regarding which the rebate is granted Under Sub-rule (1) of Rule 12, from a factory of manufacture or warehouse or any other premises as may be approved by the Commissioner of Central Excise; (b) specify materials, removal of which without payment of duty from the place of manufacture or storage for use in the manufacture in bond of export goods, may be permitted by the Commissioner of Central Excise; (c) allow removal of excisable material without payment of duty for the manufacture of export goods, as may be specified, to be exported in execution of one or more export orders; or for replenishment of duty paid materials used in the manufacture of such export goods already exported for the execution of such orders, or both; subject to such safeguards, conditions and limitations as regards the class or description of goods, class or description of materials used for manufacture thereof, destination, mod....
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.... extended period as the Commissioner of Central Excise may in any particular case allow; (iv) the claim or, as the case may be, supplementary claims, for rebate of duty is lodged with the Maritime Commissioner of Central Excise or the Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse, as mentioned in the relevant export documents; together with the proof of due exportation within the time limit specified in Section 11B of the Central Excise Act, 1944 (1 of 1944); (v) the market price of the excisable goods at the time of exportation is, in the opinion of the Commissioner of Central Excise not less than the amount of rebate of duty claimed; (vi) the amount of rebate of duty admissible is not less than five hundred rupees; (vii) the exporter undertakes to refund any rebate of duty erroneously paid, to the Commissioner of Central Excise sanctioning such rebate in accordance with provisions of Section 11A of the Central Excise Act, 1944 (1 of 1944); (viii) if the excisable goods are not exported or the proof of export thereof is not furnished to the satisfaction of the Commissioner of Central Exc....
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.... problem of limitation would not hold as the exporter in the present case chose the route Under Rule 12 which, as has been stated above, is something that can only be done if the application for rebate had been made within six months. We, therefore, allow the appeal and set aside the Bombay High Court judgment dated 12.8.2003. 24. Therefore, the aforesaid decision of the Hon'ble Supreme Court, following the decision in the case of M/s.Mafatlal Industries Limited & Others. v. Union of India & Others reported in 1997 (89) E.L.T. 247(S.C.) = (1997) 5 SCC 536 that such claims for rebate can be made only under Section 11-B within the period of limitation as prescribed under the Act. 25. Therefore, the contention of the appellant that no time limit is prescribed in the notification could not be accepted in view of proviso (a) to subsection (ii) of Section 11B of the Central Excise Act. Therefore, reading of Rule 18, there is no specific relevant date prescribed in the Notification to the effect that the relevant date on which final products or goods was cleared for export. 26. Admittedly, the goods were exported on 10.11.2008 and 15.11.2008. Thereafter, the appellant paid ad....
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....(B) reads as follows:-- "(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, as the case may be, the excisable 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 such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where ....