2017 (11) TMI 1879 - CGOVT - Central Excise

Rebate claim - time limitation - rejection on the ground that all the rebate claims had been filed after more than one year of the export of the goods and accordingly these were time-barred under Section 11B of the Central Excise Act - provisional assessment of the duty in respect of the exported goods - HELD THAT - There is no provisional assessment of duty in this case as it was neither requested by the applicant nor it was ordered by the Jurisdictional Assistant Commissioner. The Commissioner (Appeals) has further observed that the provisional assessment can be ordered under Rule 7 of Central Excise Rules by the Assistant Commissioner of the Division on the request of an assessee only in two situations when the assessee is unable to determine the value of excisable goods or the assessee is unable to determine rate of duty. But in the instant case there was no such situation and the applicant had cleared the goods for export in normal course under self-assessment procedure without resorting to any procedure of provisional assessment and thus provisional assessment was not warranted in this case even otherwise. In the revision application also these facts have not been controverted by the applicant and no evidence has been produced to establish that there was any provisional assessment of duty in this case. The Government has also no hesitation in arriving at a conclusion that the provisional assessment of exported goods is not involved in this case and the adjudication by the Additional Commissioner ordering redemption of confiscated goods on payment of fine of ₹ 15,000/- and penalty of ₹ 15,000/- cannot be termed as finalization of provision assessment in this case. The said order of the Additional Commissioner is manifestly on account of other violations by the applicant and not on account of valuation of goods etc., attracting Rule 7 of the Central Excise Rules, 2002 under which only a provisional assessment order can be issued. Thus sub-clause (eb) of clause (B) of the Explanation in Section 11B of the Central Excise Act which provides that in case where duty of Excise is paid provisionally under this Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof is relevant date is not found applicable in this at all as no such adjustment of duty has been made in the Order of the Additional Commissioner. The rebate claims filed by the applicant on 1-6-2012 are certainly time-barred as these were filed after lapse of more than one year from the export of goods on 25-2-2011 - Government finds no deficiency in the Commissioner (Appeals) s order - Revision dismissed.

Summary

Issues:
1. Rebate claims filed after the limitation period under Section 11B of the Central Excise Act.
2. Provisional assessment of duty in the case of exported goods.
3. Finalization of provision assessment and relevant date for counting the limitation period.

Analysis:
1. The applicant filed rebate claims for duty paid export of goods, which were rejected by the Assistant Commissioner as time-barred under Section 11B of the Central Excise Act. The Commissioner (Appeals) also upheld this decision. The applicant argued that the limitation period does not apply to provisionally assessed goods. However, it was found that there was no provisional assessment of duty in this case, and the rebate claims were indeed filed after the expiry of one year from the export of goods, making them time-barred.

2. The applicant claimed that the exported goods were provisionally assessed, citing the redemption of confiscated goods on 2-12-2011. However, it was established that there was no request or order for provisional assessment by the applicant or the authorities. The adjudication by the Additional Commissioner was not related to the valuation of goods or duty rate, which are prerequisites for provisional assessment. Therefore, the redemption of confiscated goods did not constitute the finalization of provisional assessment, and the relevant date for counting the limitation period remained the date of export, i.e., 25-2-2011.

3. The Government concluded that the provisional assessment of exported goods was not involved in the case. The Order of the Additional Commissioner did not entail the adjustment of duty after final assessment, as required for the application of sub-clause (eb) of clause (B) of the Explanation in Section 11B of the Central Excise Act. As a result, the rebate claims filed by the applicant on 1-6-2012 were deemed time-barred, as they were submitted after more than one year from the export of goods on 25-2-2011. Consequently, the revision application was rejected, finding no deficiency in the Commissioner (Appeals) order.