TaxTMI 
TaxTMI 
2008 (7) TMI 228
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....ly, the petitioner preferred rebate claims. Such rebate claims had to be accompanied by an export promotion copy of the shipping bill duly endorsed by the Customs authorities evidencing proof of export. The said claims were filed on 29-7-2002 and 16-8-2002. On 30-9-2002 the petitioner was served with a Show Cause Notice proposing to reject the rebate claims as the claims were found to be beyond the statutory period of limitation prescribed under Section 11B of the Central Excise Act, 1944 (the Act). Vide Order-In-Original dated 15-1-2003 the claims made by the petitioners were rejected. 4. The matter was carried in Appeal by the petitioner and vide order dated 28-8-2003 Commissioner (Appeals) allowed the appeal by recording as under: 'I have carefully considered the facts on record and the submissions made by the appellants. It is an admitted position that the EDI section of Customs House, Nhava Sheva had issued Export Promotion copy only after the stipulated period of filing rebate claim in the present case was over. The Deputy Commissioner, E.D.T. department, Nhava Sheva's letter packed in a sealed cover addressed to Divisional Head is dated 16-8-2002, which is beyond one year'....
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....o limitation period. In other words, in such situation, incomplete claim is to be filed by the claimant within the time limit and it is to be admitted by the dept. so that the claim will not be hit by time bar, subsequently.' 6. It is the case of the petitioner that the Revisional Authority has erred in reading the provisions of Section 11B of the Act as well as paragraph No. 2.4 of chapter IX appearing in Central Board of Excise and Customs, Excise Manual of supplementary Instructions (CBEC Manual) for New Excise Procedure as on 1-9-2001. That in fact, in a case where an assessee is prevented from making a claim within the prescribed period of limitation due to non-availability of relevant document from the Central Excise or Customs Department, and where such department is solely responsible, an assessee cannot be put in a disadvantageous position with respect to limitation period by reading provisions of Section 11B of the Act as being absolute and by applying said provision in abstract. It was submitted that Commissioner (Appeals) had rightly appreciated the fact that the delay had not occurred because of any laxity on part of the petitioner but it was because of the lapse on p....
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.... in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by, him and the incidence of such duty had not been passed on by him to other person' 9. On a plain reading of it can be seen that the section provides for making a claim for refund of duty (which includes rebate of duty) but such a claim has to be made before the expiry of one year from the relevant date. The application has to be in the form and manner as prescribed and the application shall be accompanied by such documentary or other evidence which will enable the applicant to establish that the amount of duty of excise in relation to which such refund/rebate is claimed was collected from, or paid by, the claimant and the incidence of such duty had not been passed on to any other person. in so far as the incidence of duty being passed over it is clear that the same is not required to be considered, as in relation to a claim for rebate, under the Proviso below sub-section (2) of Section 11B of the Act vide clause (a) of the Proviso rebate of duty of excise on excisable goods exported out of India or inputs which have ....
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....g upon the nature/importance of document not filed). The claim shall be taken as filed only when all relevant documents are available. In case of non-availability of any document due to reasons for which the Central Excise or Customs Department is solely ac countable, the claim may be admitted so that the claimant is not in disadvantageous position with respect to limitation period.' 13. It is the last sentence of the aforesaid sub-paragraph which has generated the present controversy. The case of the petitioner is that the said sentence viz, commencing with the words "in case of' non-availability of any document and ending with the words 'with respect to limitation period' indicates that the normal rule that a claim application should be accompanied by requisite documents within the period of limitation has been modified so as to ensure that an assessee is not put to disadvantage only because of lapse or laxity on part of the officers of Central Excise Department or the Customs Department. On the other hand the principal thrust of respondent authority, based on interpretation of the sentence, is that the said sentence stipulates an exception to the effect that .where, in a case, ....
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....o that the claimant is not put in a disadvantageous position 'within the limitation period' but the words used are 'with respect to limitation period'. In other words, the intention that flows from a plain reading of the language employed is that an exception is provided for in cases where a claim application cannot be tendered for want of requisite documents and such lapse is on account of non availability of such documents due to the department being solely accountable. In such circumstances, an assessee cannot be put to disadvantage by asking the assessee to tender a deficient claim within the period of limitation and simultaneously treat the claim as not having been filed till the point of time all relevant documents are available. 16. Aforesaid interpretation derives support from the earlier part of the same sub-paragraph wherein it is provided that if a claim is not processed and refund is not granted within a period of three months a claimant may become entitled to interest on the refund and hence, such incomplete claim will not be in the interest of the department. In fact, as noticed hereinbefore, submission of refund claim without supporting documents is prohibited. 17.....
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.... such procedure is not within the control of claimant-assessee. 20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of Section 11B of the Act read with paragraph No. 2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents i.e. from the said point of time. 21. The view adopted by the Revisional Authority that a departmental authority is bound by the prescribed period of limitation and cannot condone any delay also does not merit acceptance in light of what is stated hereinbefore. The Adjudicating Authority and the Revisional Authority have read the period limitation divorced from sub-paragraph No. 2.4 of the CBEC Manual which s provided for a circumstance to mitigate the unwarranted hardship resulting from reading the provision of limitation in absolute terms. In other words, how ever limited, an exception has been carved out in cases where the delay has occurred due ....