9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (6) TMI 857 - HC - Central ExciseRefund of concessionary rate of duty - cars registered as taxi - N/N. 3/2001 dated 01.03.2001, issued under Section 5A(1) of the Central Excise Act - denial on the ground of time limitation - period of limitation under Section 11B - Whether N/N. 3/2001 dated 01.03.2001 (Sl.No.225 read with condition 40) is a special provision for a specific purpose comprising a self contained code governing the procedure and conditions for grant of refund in respect of vehicles registered as taxis and ambulances? - maintainability of appeal raised by respondent-assessee - Held that - the claim of refund only comes under the notification No.3/2001 for the purpose of refund of the excise duty paid by the respondent assessee and it has to fulfil the conditions stipulated in the notification, failing which they are not entitled to the benefit of exemption, under such notification. Therefore, the contention of the respondent assessee that the instant case relates to the determination of rate of duty of excise and so the appeal will not lie within the jurisdiction of this court, cannot be accepted. The respondent assessee has claimed refund of excise duty by accepting the conditions prescribed in the N/N. 3/2001 dated 01.03.2001. Without challenging the said notification, the respondent assessee cannot have any right to claim the refund under Section 11B of the Act. Whether the time limit of six months under the notification is only a procedural condition or is it mandatory? - Held that - All the conditions in the notification have been complied with, by the respondent assessee, except Clause 40(b). Therefore, non compliance of the same, is only a procedural lapse and it can be relaxed - reliance was placed in the case of Commissioner of Central Excise vs. Exide Industries Ltd. 2008 (11) TMI 268 - HIGH COURT AT CALCUTTA , where it was held that when the substantive conditions have been fulfilled, the procedural conditions can be relaxed - the refund claims filed by the respondent assessee, are within the time limit specified under Section 11B of the CEA, 1944. The notification under dispute provides partial exemption of excise duty, on fulfilment of conditions. Condition No.40(b) of the notification provides that the claim for refund of duty has to be filed before the expiry of six months, from the date of payment of excise duty on the said motor vehicle. Condition 40(c) states that the certificate issued by the State Transport Authority has to be filed within three months or in the extended period of further three months, from the date of clearance of the said motor vehicle from the factory. Condition 40(d) provides that when the excise duty has been collected from the customers in excess, of the exemption notification then the same has to be returned to the customers and the evidence has to be submitted to the Deputy Commissioner or Assistant Commissioner of Central Excise, to the effect that the said amount has been duly returned to the buyer - the above procedure clearly shows that the notification is a complete code by itself and operates on its own. Section 5A authorises the issuance of such notification with such conditions and the source of granting absolute or partial exemption and the way of giving the exemption, by way of refund on fulfilment of post condition of removal and subject to the proof that excess excise duty is returned to the customer makes the notification as a complete code, by the powers exercised under Section 5A of the Act. The concept of unjust enrichment is also taken care in this notification and on fulfilment of return of excess excise duty only, the benefit is given to the manufacturers. Therefore, Section 11B of the Act would have no role to play in the instant case. Section 11B would not govern the provisions of a Special Scheme and therefore there is no scope for invoking Section 11B of the Central Excise Act. The Hon ble Supreme Court in the case of Sarabhai M.Chemicals 2004 (12) TMI 89 - SUPREME COURT OF INDIA , has held that the conditions prescribed in the exemption notification have to be strictly construed. Therefore, the notified time limit has to be strictly construed and there is no scope for liberty in implementation of the condition. The condition prescribed in the N/N. 3/2001 dated 01.03.2001 has been strictly complied with and the respondent assessee has claimed for exemption of excise duty. The said notification is issued by exercising the powers under Section 5A of the Central Excise Act, 1944. Therefore, the said provision is an independent one and Section 11B of the said Act would not apply to the notification issued under the powers vested. Appeal allowed - decided in favor of appellant-Revenue.
Issues Involved:
1. Eligibility of an exemption notification under Notification No. 3/2001 dated 01.03.2001. 2. Applicability of the time limit specified in Section 11B of the Central Excise Act, 1944, versus the special provision contained in Notification No. 3/2001. 3. Whether an assessee can claim refund under general provisions of law while accepting conditions stipulated in an exemption notification. Detailed Analysis: Eligibility of an Exemption Notification: The respondent, engaged in manufacturing motor cars, claimed refunds on cars registered as taxis under Notification No. 3/2001, which provided for a concessional duty rate of 16% ad valorem. The Assistant Commissioner rejected the claims as time-barred under Condition No. 40(b) of the notification, which required claims to be filed within six months from the date of duty payment. The Commissioner (Appeals) upheld this decision, stating no power to relax the prescribed time limit. The CESTAT, however, allowed the appeal, holding that the statutory period under Section 11B is one year, overriding the notification's six-month limit. Applicability of Time Limits: The appellant department contended that the notification is a special provision with a self-contained code governing the procedure and conditions for refunds, and thus, the six-month time limit is mandatory. The respondent argued that the six-month limit is procedural and can be relaxed, citing compliance with all other conditions of the notification and the one-year limit under Section 11B. Court's Decision: The Court held that the notification is a complete code by itself, issued under Section 5A of the Central Excise Act, 1944, and thus, the six-month time limit for filing refund claims is mandatory. The Court emphasized that the conditions in the notification must be strictly complied with, and the general provisions of Section 11B do not apply to special schemes under specific notifications. The Court relied on several precedents, including the Supreme Court's decision in Raghuvar (India) Ltd., which stated that special schemes govern their situations, and general provisions cannot override them. Conclusion: The Court concluded that the respondent's claims were time-barred as per the mandatory six-month limit under Notification No. 3/2001. The Tribunal's decision to apply the one-year limit under Section 11B was incorrect. The appeal by the Revenue was allowed, and the Tribunal's order was set aside. Final Judgment: The Civil Miscellaneous Appeal was allowed, and the substantial questions of law were answered in favor of the appellant Revenue. No order as to costs was made.
|
