2020 (12) TMI 697 - HC - Central Excise

Refund claim - time prescribed u/s 11B of the Central Excise Act - mistake of law or not - exemption ab-initio - circular dated 15.03.2013 - refund of Terminal Excise Duty - HELD THAT - The appeal is admitted on the substantial questions of law.

Summary

Issues:
1. Interpretation of the time limitation for filing a refund claim under section 11B of the Central Excise Act.
2. Application of the Limitation Act 1963 in cases of payment of Central Excise duty under a mistake of law.
3. Refund of Terminal Excise Duty in cases of exemption ab-initio to transactions under International Competitive Bidding.
4. Relationship between sections 11B(1), 11B(2), and 11B(3) of the Central Excise Act regarding time limitation.
5. Dispute resolution between the Central Excise Department and the Director General Foreign Trade (DGFT) concerning refund policies.
6. Determining the trigger point for claiming refund of Terminal Excise Duty based on policy changes by DGFT.

Analysis:
1. The first issue revolves around whether the time spent in approaching the wrong forum should be condonable for filing a refund claim within the prescribed time under section 11B of the Central Excise Act. The court will analyze if any manifest error of judgment occurred by the authorities in this regard.

2. The second issue involves the application of the Limitation Act 1963 in cases where Central Excise duty is paid under a mistake of law. The court will determine if the Limitation Act supersedes the provision of refund under section 11B of the Central Excise Act.

3. The third issue pertains to the unfettered right of refund of Terminal Excise Duty in cases where Central Excise duty is exempt ab-initio for transactions under International Competitive Bidding. The court will examine if the authorities erred in not appreciating this right.

4. The fourth issue focuses on the independence of sections 11B(1) and 11B(2) of the Central Excise Act, and the impact of the non-obstante clause in section 11B(3) on the time limitation aspect. The court will determine if the refund claim is time-barred under section 11B(3).

5. The fifth issue involves a dispute resolution between the Central Excise Department and the DGFT regarding refund policies, specifically concerning the circular issued by DGFT on amendment to the Foreign Trade Policy. The court will assess if the two entities can settle the dispute inter-se and if the right of refund is indeed unfettered.

6. The final issue addresses the trigger point for claiming refund of Terminal Excise Duty based on the policy changes introduced by DGFT through a circular. The court will evaluate if the date of knowledge of the circular by the appellant should be considered the trigger point for filing the refund claim under section 11B of the Central Excise Act.