TaxTMI 
TaxTMI 
2019 (12) TMI 177
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....s, 2002 ['Rules' for short] read with Section 11-B of the Central Excise Act, 1944 ['Act' in short]. It is contended that no time limit has been prescribed for filing a rebate claim under Rule 18 of Rules and Section 11-B of the Act is not applicable to the Notification No.19/2004/CE(NT) dated 6.9.2004 issued by the Central Government under Section 18 of the Rules. The petitioners had claimed the refund of rebate for the exports made during periods prior to the amendment effected on 01.03.2016 to the Notification No.19/2004 whereby Section 11-B of the Act was made applicable to the said Notification. It was argued that Notification No.41/94 CE did contain the time limit referring to Section 11-B of the Act. Consciously, the same was omitted in the Notification No.19/2004 CE (NT), issued superseding the previous Notification No.41/1994. 3. It was contended that in the absence of any time limit prescribed under Rule 18 of the Rules and the Notification No.19/2004, amendment brought to Notification of 19/2004, applying Section 11-B of the Act vide Notification No.18/2016/CE(NT) dated 1.3.2016 is prospective in nature. The respondent Authorities cannot apply the amen....
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.... strictly adhering to the limitation period prescribed therein. 5. It is not open to subordinate legislation to dispense with the requirements of Section 11-B. Even if the Notification is silent inasmuch as the prescription of time limit, it has to be implied that the time limit prescribed under Section 11-B shall apply. 6. Learned counsel has placed reliance on the Division Bench judgment of the Hon'ble Madras High Court in the case of M/s Hyundai Motors India Limited Vs. The Department of Revenue and another reported in (2017)355 ELT 342. 7. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record. 8. The primary ground of challenge to the orders impugned is relating to the applicability of Section 11-B of the Act to the Notification No.19/2004 issued under Rule 18 of the Rules. It is not in dispute that the Notification No.41 of 1994/CE holding the field for about 10 years did prescribe the time limit for availing the refund of duty. The omission of the time limit in the subsequent Notification 19/2004 was considered by the Hon'ble High Court of Madras in the case of Dorcas Market Makers Pvt. ....
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....terpreting or misapplying the provisions of the Central Excises an Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including S....
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....se 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 18 months. We, therefore, allow the appeal and set aside the Bombay High Court judgment dated 12.8.2003". 11. It was argued by the learned counsel for the petitioners that the order passed in M/s Hyundai Motors India Limited, supra, is inconsistent with the decision of M/s Ford India limited, supra, whereby it has been held that Section 11-B would not govern the provisions of the special scheme and therefore, there is no scope for invoking Section 11-B of the Act. In this context, it is significant to note that the Hon'ble Madras High Court while considering the exemption notification issued under Section 5A of the Act, has held that section 11-B of the Act would not apply, whereas while rendering the judgment in M/s. Hyundai Motors supra, considering the Notification No.19 of 2004 issued under Rule 18 of the Rules, placing reliance on M/s. Uttam Steels Limited, supra, has held that Section 11-B of the Act is applicable. It is apt to refer to paragraph 26 of M/s. Hyundai Motors supra, which reads thus: "26. Therefore, ....