2010 (1) TMI 848 - CGOVT - Central Excise

Rebate claims - duty paid on goods which have been exported out of India - goods meant for export were cleared from the factory on 7-7-04 and the said goods were exported on 12-1-05 i.e. after six months and no extension was requested for delayed export - Applicant s contention that it is a procedural lapse and same may be condoned is not correct as the competent authority has not allowed the extension of time limit for export of goods beyond six months applicant was aggrieved with the rejection, the appeal against the order of Commissioner of Customs and Central Excise was required to be filed before Appellate Tribunal in terms of Section 35B of Central Excise Act, 1944. Since no such appeal, is filed, the Commissioner s order has become final - Held that - rebate claim is not admissible to the applicant for failure to comply with the condition 2(h) of Notification No. 19/2004-C.E.(N.T.), dated 6-9-04 and due to rejection for their request for extension of time limit for export of goods by jurisdictional Commissioner of Central Excise, Revision Application is thus rejected being devoid of merit.

Summary

Issues Involved:
1. Timeliness of the rebate claims submission.
2. Delay in export beyond six months from the date of clearance.
3. Procedural lapses versus substantive rights.
4. Authority and discretion of the Commissioner of Central Excise.

Detailed Analysis:

1. Timeliness of the Rebate Claims Submission:
Relevant Facts and Arguments:
- The applicant filed rebate claims for duty paid on exported goods, but these claims were submitted after one year from the date of shipment.
- The goods were exported on 12-1-05, and the rebate claims were filed on 22-2-06, thus exceeding the one-year limit stipulated under Section 11B of the Central Excise Act, 1944.
- The applicant argued that the rebate claims were initially filed within the time limit but were forwarded to the correct jurisdiction later, which should be considered for the time limit calculation.

Judgment:
- The Government acknowledged that the rebate claims were filed with the Assistant Commissioner (Rebate) Central Excise, Mumbai-I on 9-1-06, within one year of the shipment date of 12-1-05.
- The Commissioner (Appeals) failed to consider this crucial fact, which led to the erroneous rejection of the claims as time-barred.
- The Government found that if the claims were indeed filed on 9-1-06, they were within the permissible time frame, thus invalidating the department's stance on time-barred claims.

2. Delay in Export Beyond Six Months:
Relevant Facts and Arguments:
- The goods were cleared from the factory on 7-7-04 but were exported on 12-1-05, exceeding the six-month period allowed for export under Notification No. 19/2004-C.E. (N.T.).
- The applicant contended that the delay was due to non-availability of a vessel and was beyond their control. They sought post facto approval for the delay from the Commissioner.

Judgment:
- The Commissioner has discretionary power to extend the export period under condition 2(h) of the Notification No. 19/2004-C.E. (N.T.).
- The Commissioner did not grant the extension, and the applicant did not appeal this decision, making it final.
- The Government concluded that the delay in export beyond six months without the Commissioner's extension rendered the rebate claims inadmissible.

3. Procedural Lapses Versus Substantive Rights:
Relevant Facts and Arguments:
- The applicant argued that procedural lapses should not deprive them of substantive rights, citing various precedents where courts and tribunals have ruled in favor of substantial compliance over minor procedural infractions.

Judgment:
- The Government acknowledged the principle that substantive rights should not be denied due to procedural lapses. However, in this case, the procedural requirement of obtaining an extension for delayed export was not fulfilled.
- Since the Commissioner's refusal to extend the export period was not contested, the procedural lapse could not be condoned by the Government.

4. Authority and Discretion of the Commissioner of Central Excise:
Relevant Facts and Arguments:
- The Commissioner's authority to grant extensions for export beyond six months is discretionary.
- The applicant's request for post facto approval of the delay was rejected by the Commissioner.

Judgment:
- The Government reaffirmed that the Commissioner's decision to deny the extension was within his discretionary powers and became final as it was not appealed.
- The Government could not override the Commissioner's decision, thus upholding the rejection of the rebate claims due to non-compliance with the stipulated conditions.

Conclusion:
The Government rejected the revision applications, emphasizing the finality of the Commissioner's decision not to extend the export period and the procedural non-compliance by the applicant. The rebate claims were deemed inadmissible due to the failure to meet the conditions outlined in Notification No. 19/2004-C.E. (N.T.). The revision applications were thus dismissed for lack of merit.