TaxTMI 
TaxTMI 
2022 (12) TMI 49
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....e order passed by the respondent rejecting the claim of the appellant for rebate on the ground that the claim was barred by time/limitation prescribed under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as the 'Act'), the original writ petitioner/appellant herein has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the appellant herein - M/s Sansera Engineering Limited is a manufacturer of excisable goods. It exported goods on payment of excise duty between August, 2015 and October, 2015 and filed claims for rebate of duty paid on the goods exported on 10.02.2017 to the tune of Rs. 29,47,996/- and Rs. 42,27,928/- under Rule 18 of Central Excise Rules, 2002 (hereinafter referred to as the '2002 Rules') in respect of these exports. Subsequently on 14.02.2017, for the period October 2015 to March 2016, the appellant claimed rebate of Rs. 1,47,27,766/-. 2.1 The original authority rejected the above-mentioned rebate claims as barred by time prescribed under Section 11B of the Act vide three different Orders-in-Original. Aggrieved by the respective Orders-inOriginal rejected the respective claims....
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....i) that as per notification dated 6.9.2004 on fulfilling of such procedure and the conditions as specified in the notification, there shall be granted rebate of the whole of the duty paid on the excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 exported to any country other than Nepal and Bhutan. As it was found that the exporters were causing great hardship in getting the remittance certificates within six months, a conscious decision was taken at the time when Rule 18 of the 2002 Rules was enacted and when notification dated 6.9.2004 was issued excluding the applicability of Section 11B. As subsequently the period of six months was increased to one year, it appears that thereafter vide notification dated 1.3.2016, again the applicability of Section 11B of the Act was introduced; vii) that there is a vast difference and distinction between the refund of duty and the rebate claim; and viii) that as Rule 18 is a special provision for the grant of rebate of duty, general provision of Section 11B of the Act which is for refund of duty shall not be applicable. Reliance is placed on the decision of this Court in the case of Collector of Cen....
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....ee is not in a position to get the necessary documents within the prescribed period of limitation, the refund under Section 11B of the Act cannot be denied. It is submitted that it is observed and held by the Gujarat High Court in the aforesaid decision that any procedure prescribed by a subordinate legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. It is submitted that applying the same to the rebate claim, many a times the exporters were facing the difficulty in getting the requisite remittance certificates and therefore in such a situation the exporter who has in fact exported the goods and earned the foreign remittance cannot be denied the rebate claim. 3.4 Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant has submitted that the object and purpose of the rebate of duty on export of goods can be termed as "incentive" to boost the export and earn foreign remittance. It is submitted that therefore if such a claim for rebate of duty is denied despite earning foreign remittance on the goods exported on such technical grounds, it may defeat the object and purpose for grant of reb....
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....o Section 11B of the Act, "relevant date" means in the case of goods exported out of India where a refund of excide 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. It is submitted that therefore in Section 11B of the Act, there is a specific reference to the rebate of duty and such claim of rebate of duty shall have to be made before the expiry of one year from the relevant date. It is submitted that therefore the period of limitation prescribed under Section 11B of the Act shall be applicable with respect to claim for rebate of duty also. 4.4 It is further submitted by the learned counsel appearing on behalf of the revenue that Section 11B of the Act can be said to be a parent statute and Rule 18 and notification dated 6.9.2004 can be said to be a subordinate legislation. Notification dated 6.9.2004 which has been issued in exercise of powers under Section 37 of the Act provides for "procedure". It is submitted that as per Section 37(xxiii) of the Act, the Central Government may make rules to specify the form and manner in which application for refund shall be made under Section 11B....
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....mbay High Court in the case of Everest Flavours Ltd. v. Union of India, 2012 (282) ELT 481 (Bombay) (paras 10,11 & 12). 4.9 Learned counsel appearing on behalf of the Revenue has further submitted that if the submission on behalf of the appellant that the period of limitation of one year prescribed under Section 11B of the Act shall not be applicable with respect to claim for rebate is accepted, in that case, there shall not be any limitation at all and at any time, exporter can make an application for rebate claim. It is submitted that therefore Rule 18 and notification dated 6.9.2004 are to be read harmoniously with the parent statute - Section 11B of the Act. 4.10 Making above submissions and relying upon the decision of this Court in the case of Uttam Steel Ltd. (supra) and the decision of the Madras High Court in the case of Hyundai Motors India Ltd. (supra) and the decision of the Bombay High Court in the case of Everest Flavours Ltd. (supra), it is prayed to dismiss the present appeal. 5. In rejoinder, Shri Arvind P. Datar, learned Senior Advocate appearing on behalf of the appellant has submitted that if the contention on behalf of the appellant that the period of ....
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.... [* * *] [(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) 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) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with t....
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....e Official Gazette.] [Explanation. - 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 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 ....
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....e goods exported. Therefore, the application for rebate of duty shall be governed by Section 11B of the Act and therefore shall have to be made before the expiry of one year from the "relevant date" and in such form and manner as may be prescribed. The form and manner are prescribed in the notification dated 6.9.2004. Merely because in Rule 18 of the 2002 Rules, which is an enabling provision for grant of rebate of duty, there is no reference to Section 11B of the Act and/or in the notification dated 6.9.2004 issued in exercise of powers conferred by Rule 18, there is no reference to the applicability of Section 11B of the Act, it cannot be said that the provision contained in the parent statute, namely, Section 11B of the Act shall not be applicable, which otherwise as observed hereinabove shall be applicable in respect of the claim of rebate of duty. 10. At this stage, it is to be noted that Section 11B of the Act is a substantive provision in the parent statute and Rule 18 of the 2002 Rules and notification dated 6.9.2004 can be said to be a subordinate legislation. The subordinate legislation cannot override the parent statute. Subordinate legislation can always be in aid....
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....l be applicable with respect to rebate of duty claim. 12. As such, the issue involved in the present appeal is squarely covered by the decision of this Court in the cases of Mafatlal Industries Ltd. (supra) and Uttam Steel Limited(supra). After taking into consideration Section 11B of the Act and the notification and procedure under Rule 12, it is specifically observed and held that rebate of duty of excise on excisable goods exported out of India would be covered under Section 11B of the Act. After referring to the decision of this Court in the case of Mafatlal Industries Ltd. (supra), it is further observed in the case of Uttam Steel Limited(supra) that such claims for rebate can only be made under Section 11B within the period of limitation stated therefor. On the argument based on Rule 12, this Court has specifically observed that such argument has to be discarded as it is not open to subordinate legislation to dispense with the requirements of Section 11B. The aforesaid observations made by this Court in the case of Uttam Steel Limited(supra) clinches the issue. The said decision has been subsequently rightly followed by the Madras High Court in the case of Hyundai Motor....
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.... within its purview, a rebate of excise duty, Rule 18 of the 2002 Rules cannot be read independent of requirement of limitation prescribed in Section 11B. Before the Bombay High Court, the decision of the Madras High Court in the case of Dorcas Market Makers Pvt. Ltd. (supra), which is relied upon on behalf of the appellant was also pressed into service by the assessee. However, the Bombay High Court did not agree with the said decision. The Bombay High Court also distinguished the decision of this Court in the case of Raghuvar (India) Ltd. (supra). In paragraphs 7 to 10, it is observed and held as under: "7. Counsel appearing on behalf of the petitioner sought to place reliance on a decision of the Supreme Court in Collector of Central Excise v. Raghuvar (India) Ltd. - (2000) 5 SCC 299. The issue which fell for determination before the Supreme Court, inter alia, was whether action for the recovery of MODVAT credit wrongly availed of or utilised in an irregular manner under Rule 57-I would be governed by the period of limitation of six months (at the relevant time) prescribed in Section 11A. The Supreme Court noted that Section 11A is not an omnibus provision which provides any ....
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....rs Private Limited, Chennai v. CIT (Appeals) 2012 (281) E.L.T. 227 (Mad.) was sought to be relied upon to submit that Section 11B of the Central Excise Act would not operate in respect of an application under Rule 18 of the Central Excise Rules, 2002. The learned Single Judge of the Madras High Court held that when a statutory Notification which was issued under Rule 18 does not prescribe any time limit, Section 11B would not be attracted. With respect, the learned Single Judge of the Madras High Court has not had due regard to the specific provision of Explanation (A) to Section 11B of the Act under which the expression "refund" is defined to include rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of such goods. The judgment of the Supreme Court in Raghuvar which has been relied upon by the learned Single Judge of the Madras High Court has already been considered hereinabove. 10. In exercise of the powers conferred by Rule 18, the Central Government has issued a Notification3. The Notification prescribes the conditions and limitations upon which a claim for rebate can be granted. Among the conditions and limita....
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....tisfied that the claim is in order, he shall sanction the rebate either in whole or in part." The provisions of the Notification thus make it abundantly clear that a mere submission of the ARE-I form does not constitute the presentation of a claim for rebate of Central Excise. Form ARE-1 in turn has various parts including Part A which deals with the certification by Central Excise Officer, Part B which deals with certification by the Officer of Customs and Part D which is the actual Rebate Sanction Order. Moreover, it would be necessary to take note of the fact that under Section 11BB of the Act, interest is liable to be paid if any duty which is ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of application under subsection (1) of Section 11B. For the purpose of Section 11BB, presentation of the application is the relevant date from which the period of three months has to be reckoned. If the submission of the petitioner were to be accepted, viz. that the mere presentation of the ARE-1 form would constitute an application for rebate of Central Excise Duty, that would defeat the whole....