TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 143
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....or aircraft leaves the country; C. This Hon'ble Court may be pleased to issue writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside impugned order dated 10.2.2021 passed by the Government of India (annexed at Annexure B) as well as the orders passed by the lower authorities as confirmed by the said order; D. This Hon'ble Court may be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ or order directing the Respondents to grant refund of Rs. 42,47,429 under the Finance Act along with appropriate interest on such refund; E. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to direct the Respondents to grant refund of Rs. 42,47,429 under the Finance Act along with appropriate interest on such refund; F. Ex parte ad interim relief in terms of prayer E may kindly be granted; G. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray." 2. The facts giving rise to the present writ-applica....
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....mately, the inward stamp on the refund application along with the necessary documents could be affixed only on 18.2.2014. (9) The writ-applicants continued to believe that the refund application had been filed within the stipulated time limit as per the statute, which was one year from the expiry of the date the goods left the country. (10) The respondent no.3, however, proceeded to issue show cause notice to the writ-applicants proposing to reject the refund on the ground that the refund application had been filed after the expiry of one year from the date of let export order and was time barred as per the impugned clause 3(g) of the Notification No. 41/2021-ST dated 29.6.2012. (11) The writ-applicants filed their reply to the show cause notice submitting that the refund application was filed within the statutory time limit. The writ-applicants further submitted affidavit of Mr. Amubhai Joshi, i.e. the accountant of the writ-applicants, narrating the factual sequence of the events. (12) During the course of the adjudication of the show cause notice, the Superintendent of Central Excise, Division Junagadh, submitted an affidavit, wherein it was accepted that the accountant ....
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....refund application is to be filed within one year from the 'relevant date'. The phrase 'relevant date' is defined in clause (B) of the Explanation to Section 11B of the Excise Act. Insofar as the exports are concerned, it is provided that if the goods are exported by sea or air, then the relevant date will be the date on which the ship or aircraft leaves India. Despite such clear statutory provision, the impugned clause 3(b) of the Notification No.41/2012-ST dated 29.6.2012 provides that the refund application is to be filed within one year from the let export order passed under Section 51 of the Customs Act. Such clause, which is a part of the delegated legislation, is ultra vires Section 83 of the Finance Act read with Section 11B of the Excise Act. (b) It is a settled position of law that if the delegated legislation is in conflict with any statutory provision, then the statutory provision would prevail. Reliance is placed on the following judgments of the Supreme Court: (i) ITW Signode India Ltd. vs. Collector of Central Excise, (2004) 3 SCC 48; (ii) Laghu Udyog Bharti vs. Union of India, 115 STC 616 (SC); (iii) Deputy Commercial Tax Officer vs. Sha Sukraj Peerajee, AIR....
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....elation to service tax as they apply in relation to a duty of excise:- Sub-section (2A) of section 5A, sub-section(2) of section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, 15A, 15B, 31, 32, 32A to 32P, 33A, 35EE, 34A, 35F, 35FF, to 35O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40." 9. Thus, Section 11B of the Excise Act has been expressly borrowed for the purpose of the Finance Act. The relevant extract of Section 11B of the Excise Act is as under: "11B (1).- Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collecte....
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.... the proper officer of the Customs makes an order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act. Hence, as per the Notification, the refund claim is to be filed within one year from passing of the order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act. Such prescription of limitation is in direct conflict with the statutory provision, i.e. Section 11B of the Excise Act, which provides for limitation to commence from the date when the ship leaves India. 14. It is a well-established legal position that in case of conflict between the statutory provision and the delegated legislation, the former would prevail. A reference may be made in this regard to the judgement of the Supreme Court in the case of ITW Signode India Ltd. vs. Collector of Central Excise, (2004) 3 SCC 48 wherein it is observed as under: "56. It is true that Rule 173-B has not been amended. But even if the same has not been done, it would not make a material difference as now a comprehensive provision has been made in the primary Act, and, thus, a rule framed thereunder even in case of conflict must give way ....
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....arry out the purposes of the Act, but the section cannot be utilised to enlarge the scope of Section 10 regarding recovery and payment of tax from some other person other than a 'dealer' under the Act..." 16. Applying such principle to the present case, the period of limitation cannot be stipulated by the delegated legislation, which is contrary to the period stipulated by the statutory provision. The statutory provision would prevail over the delegated legislation. Hence, the impugned clause 3(g) of Notification No. 41/2012-ST dated 29.6.2012 and the Explanation thereto which provides that the period of limitation for claiming refund will commence from the date of passing of the order permitting the clearance by the Customs officer is ultra vires Section 11B of the Excise Act which clearly provides that the period of limitation will commence from the date when the ship leaves India. 17. In the affidavit-in-reply filed by the respondents, it is sought to be averred that the impugned clause 3(g) and the Explanation thereto only clarify the provision contained in clause (B) of Explanation to Section 11B of the Excise Act. However, clause (B) of Explanation to Section 11B of the Exc....