TaxTMI 
TaxTMI 
2019 (8) TMI 317
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....ner is a manufacturer of Camphor USP falling under Chapter sub-heading 29142120 of the Central Excise Tariff Act, 1985. By Central Excise Notification No. 19/2004 dated 06.09.2004, the Central Government in exercise of its powers under Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as the 'Rules'), in supersession of earlier notifications, granted rebate on the whole of the duty paid on all excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985, when exported to any country, other than Nepal and Bhutan. The said rebate was made subject to the conditions, limitations and procedures specified in that notification. Rule 18 of the Rules read as under: "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. - For the purposes of this rule, "export", with its grammatical variations and cogna....
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....al Excise shall compare the duplicate copy of application received from the officer of customs with the original copy received from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part. 3(c) Claim of rebate by electronic declaration :- An exporter may enter the requisite information in the shipping bill filed at such place of export, as may be specified by the Board, for claiming rebate by electronic declaration on Electronic Data Inter-change system of Customs. The details of the corresponding application shall be entered in the Electronic Data Inter3 change system of Customs upon arrival of the goods in the Customs area. After goods are exported or order under Section 51 of the Customs Act, 1962 (52 of 1962) has been issued, the rebate of excise duty shall, if the claim is found in order, be sanctioned and disbursed by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs." 5. Undisputedly, the petitioner exported its final product, namely Camphor USP to countries other than Nepal and Bhutan. The disputed transactions are te....
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....anation.- For the purposes of this section,- (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (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 dispatch of goods by the Post Office concerned to a place outside India;" 7. The petitioner's appeals against the aforesaid orders also came to be rejected. Those orders have been affirmed by the revising authority by the order impugned in the present writ petition. 8. Heard Shri Nishant Mishra assisted by Shri Tanmay Sadh and Shri Kartikeya Narain, Advocates, for the petitioner and Shri Ramesh Chandra Shukla, learned Senior ....
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....ly introduced the rule of limitation in the scheme of rebate from excise duty, arising under Notification No. 19/2004 dated 06.09.2004. With effect from 01.03.2016, it provided, such claims be made before expiry of the period specified under Section 11B of the Act. Thus, the delegate of the legislature had, for the first time, amended the stipulation of limitation provided under the notification dated 06.09.2004 and consequently introduced a further condition by way of rule of limitation to make a claim for rebate. 14. The aforesaid amendment having been made prospectively, according to the learned counsel for the petitioner, the same cannot be read into the fact situation of the present case. The claim of the petitioner had arisen about two years prior to the amendment to that law. The same was wholly valid and maintainable and would be governed by the unamended law. 15. Reliance has been placed on the decisions of the Supreme Court in the case of CCE Vs. Raghuvar (India) Ltd., 2000 9118) ELT 311 (SC), as followed in CCE Vs. Ram Swarup Electricals Ltd., 2007 (217) ELT 12 (All.); DCCE Vs. Dorcas Market Makers Pvt. Ltd., 2015 (321) ELT 45 (Mad); and JSL Lifestyle Ltd. Vs. UOI, 201....
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....paid or had been short levied or short paid or erroneously refunded. That position of law was distinguished and held inapplicable to enforce a recovery of MODVAT wrongly availed. 18. In that case, it was the manufacturer who claimed the benefit of Section 11A of the Act by stating - no recovery could be made from him beyond the period of one year limitation under Section 11A of the Act. The Supreme Court negated that claim, amongst others, on the reasoning - a recovery contemplated under Section 11A is different and distinct from recovery of MODVAT wrongly claimed. For reaching that conclusion, the Supreme Court considered the separate nature of duty liabilities contemplated under Section 11A of the Act and the MODVAT scheme enforced by Rule 57A to 57P of the old Rules. 19. The above position does not arise in the present case, inasmuch as by virtue of Explanation (A) appended to Section 11B, all claims of rebate from excise duty have been specifically included in the statutory definition of claims for refund. By virtue of that statutory inclusion, any distinction that may otherwise have existed between the true meaning, purport and scope of a refund claim and a rebate claim, has....
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.... By way of an alternative but equally binding reasoning contained in paragraph no.14 of the report, it was held, even if the first reasoning were not to operate or be applicable, then, applying the rule - special law would prevail over a general law. It was held the MODVAT scheme was a special scheme while the rule of limitation contained in Section 11A was a general law. The scheme of MODVAT was found to be a special scheme with self-contained procedure, manner and method for its implementation, providing for its own remedies to undo any mischief committed by the manufacturer and any abuses thereof. 24. In such facts the provisions of the scheme (special law), alone were found to govern the situation. It was held - there was no scope to read the stipulations (of limitation) contained in the general provision of law (Section 11A of the Act), in the special law. Then, by way of third reasoning, it was further held, in any case, the MODVAT scheme underwent an amendment on 06.10.1988 whereby period of limitation of six months was introduced to Rule 57-I. That amendment being purely prospective in nature, it was held that it did not apply to past transactions. 25. The above decision....
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....Raghuvar (India) Ltd. (supra) was not applicable to the claim for rebate from duty made in view of the fact that a claim for rebate from duty had been brought within the purview of Section 11B of the Act, under Explanation (A) thereto. It was held, since the application for rebate from excise duty had been specifically included within the ambit of refund, therefore, the ratio in the case of Raghuvar (India) Ltd. (supra) was inapplicable. 28. Thereafter, the division bench of the Bombay High Court considered the ratio of Dorcas Market Makers Pvt. Ltd (supra) of the Madras High Court and distinguished it for the reason noted above. However, it clearly appears (from plain reading of its decision), that the second and the third limb of reasoning in the decision of the Supreme Court in the case of Raghuvar (India) Ltd. (supra) had not been relied before the Bombay High Court. For that reason, it does not appear to have been considered or dealt with. 29. On the other hand, the decision of learned single judge of the Madras High Court in Dorcas Market Makers Pvt. Ltd (supra) became a subject matter on intra-court appeal before that court wherein division bench decision of the Bombay Hi....
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....ed in that case arose on account of a complete difference between a claim for recovery of duty not-levied or not-paid or short-levied or short-paid and recovery of MODVAT wrongly availed. There was no provision under Section 11A of the Act whereby recovery for MODVAT wrongly availed could be considered the same or treated at parity with duty not-levied or not-paid or short-levied or shortpaid. To that extent, the decision of the Supreme Court is wholly distinguishable, in view of the clear intendment of the statute where under by virtue of Explanation (A) to section 11B of the Act, a claim for rebate of duty has been specifically included in a claim for refund of duty. 32. However, it still falls for consideration whether in view of the further reasoning of the Supreme Court there exists any special law governing the claims for rebate from excise duty and whether the amendment made introduces the rule of limitation, only prospectively. Looking into the clear language of the notification, it appears that in the first place, the delegate of the legislature i.e. Central Government, in exercise of the powers under Rule 18 of the Rules read with Section 37 of the Act provided that the....
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....t does appear, all the conditions and limitations the legislature wanted to introduce for grant of special rebate from excise duty (in the case of export of excisable goods), were stipulated in the notification itself. It was self contained. Even for the purposes of the presentation of a claim for rebate, the manner and mode had been prescribed under clauses 3(b) and 3(c) of the notification alone. Again there was no suggestion to limit those claims by the general prescription of time contained in section 11B of the Act. 37. Further, in that background, the amendment notification is relevant. Thereby under Clause 3(b), sub-paragraph (I), the words "before the expiry of the period specified in Section 11B of Central Excise Act, 1944 (1 of 1944)" have been introduced for the first time. Clearly, that amendment has been made prospectively from 01.03.2016 and there is no intendment either explicit or implied to make it retrospective. As discussed by the Madras High Court in Dorcas Market Makers Pvt. Ltd (supra), with which I find myself in agreement, the pre-existing law and the post amendment law would clearly bring out that the amendment to the notification in question was wholly am....