TaxTMI 
TaxTMI 
2020 (8) TMI 138
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.... under Rule 5 of the CENVAT Credit Rules 2004 r/w Notification No.27/2012-CE (NT) dated 18.06.2012. The respondent herein through separate impugned orders dated 18.11.2017 and 19.12.2017 objected the claim contending that the refund claim is to be filed within a period of one year from the relevant date and the relevant date would be the date of receipt of payment in convertible foreign exchange with regard to the export made during the relevant period, for which the refund application is made. Aggrieved against both the rejection orders, the present Writ Petitions are filed. 3. Section 11 (B) of the Central Excise Act 1944 r/w Clause 3(b) of Notification No.27/12-CE (NT) dated 18.06.2012 enable a person for refund of any duty of excise and interest, by making an application with the authority before the expiry of one year from the relevant date. Through a Notification No.14/2016-CE (NT) dated 01.03.2016, Clause 3(b) of Notification No.27/12-CE (NT) dated 18.06.2012 came to be substituted, whereby the term 'relevant date', in the case of service provider was clarified to be after one year from the date of - (a) Receipt of payment in convertible foreign exchange ....
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....stitution would be prospective or retrospective in nature. 7. For the sake of convenience, the mode of reckoning the relevant date under the Notification No.27/12 dated 18.06.2012 and the subsequent amendment under Notification No.14/16 dated 01.03.2016 are reproduced below:- Notification: 27/2012-C.E. (N.T) dated 18-Jun-2012 3. Procedure for filing the refund claim: (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). Notification : 14/2016-C.E.(N.T) dated 01-Mar-2016 In the said notification, in Paragraph 3, for clause (b), the following shall be substituted, namely;- (ii) in case of service provider, before the expiry of one year from the date of- (a) receipt of payment in convertible foreign exchange, where provision of service had been completed prior to receipt of such payment ; or (b) issue of invoice, where payment for the service had been received in advance prior to the d....
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....9; case (supra). The ratio laid down in the aforesaid decisions may not be applicable to the issue involved in the present cases. The reason being, the present amendment in Notification No.14/2016 dated 01.03.2016 is only a substitution of the earlier Notification No.27/12 dated 18.06.2012 and the above decision relied upon by the petitioner does not deal with the case of substitution of a provision. When the original provision itself has been substituted, the procedure contemplated in the original notification becomes redundant and the subsequent substitution would have been replaced therein. 13. The learned Standing Counsel for the respondent relied upon a decision in the case of Mehler Engineers' case (supra), which rightly clarified the effect of substitution in the following manner :- "10. The legal principles deducible from the above decisions is that if subsequent Act amends as earlier one in such a way as it incorporate itself or a part of itself into the earlier, the act must be construed as 'retrospective'. This is so, because the word "substituted" would mean 'to put one in the place of another' or 'to replace'. Thus, on account of....
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....Others vs. RAM KUMAR & Another reported in AIR 2001 SC page 2472, while dealing with the question whether a substituted provision necessarily means the amended provision is retrospective in nature has held as under: "A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act." 11. In fact, the Division Bench of this Court in the case of SHA CHUNNILAL SOHANRAJ VS. T.GURUSHANTAPPA reported in 1972(1) MYS.L.J. PAGE 327 DB has held as under: "When an amending Act has stated that the old sub-section has been substituted by the new sub-section the inference is that the Legislature intended that the substituted provision should be deemed to have been part of the Act from the very inception." 12. Recently, the Hon'ble Apex Court in the case of GOVERNMENT OF INDIA VS. INDIAN TOBACCO ASSOCIATION reported in 2005(187) ELT PAGE 162 (SC), while dealing with the exemption notification which was issued by way of substitution, held as under:- "15. The word 'substitute' ordinarily wou....
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....ule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague." 19. Thus, the 'substitution' by way of an amendment dated 31.12.2008 has to be read to put in place instead of the Rule, which was in existence prior to the said Notification. In other words, it has to be read as a replacement of an existing Rules. 20. The Hon'ble Supreme Court in the case of Zile Singh vs. State of Haryana and Others [(2004) 8 SCC pg.1 brought about the distinguishing features between 'substitution' and 'supersession' and explained the same as under:- "24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. "Substitution" has to be distinguished from "supersession" or a mere repeal of an existing provision. 25.Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid.,p.565). If any authority is needed in support of the proposition, it is to be fo....