2016 (7) TMI 804 - CGOVT - Central Excise

Rebate / refund claim - Rebate claim on the basis of supplementary invoices - Period of limitation - Rule 18 - The applicant filed rebate claims and the same were sanctioned - Subsequently because of contractual obligation the applicant received additional amounts due to cost variance from their importers i.e. M/S. RHI AG Vienna and their other affiliated group companies on which the applicant paid the differential duty with interest. Subsequent to payment of differential duty the applicant filed two rebate claims. Held that - In remand proceedings the original authority has held that during the material period of export of subject excisable goods that is from 21.03.2002 to 31.012008 on which impugned rebate was claimed the applicant were only a manufacturing unit in DTA and not 100% EOU and as such ratio of Government of India order No. 418/2011-CX dated 27.04.2011 is not applicable to this case and the rebate of 4, 36, 053/- is in order. In respect of the claim for 24, 04, 012 /- only the rebate of 18, 70, 080/- was sanctioned and 5, 33, 92/- was rejected as time barred. Government further notes that the applicant is challenging only rejection of 5, 33, 932/- in this Revision Application. This issue has already been settled in first round of Revisionary Proceedings vide Government of India Revision Order No. 455-456/11-CX dated 03105.2011. The said Revision Order dated 03.05.2011 has not been reported by the applicant to have challenged before any higher judicial forum. As such the said Revision Order dated 03.05.2011 has attained its finality. As such rebate claim of 5, 33, 932/- which was held inadmissible as time barred also attained finality. This issue which has already attained finality cannot be raised in this second round of Revisionary Proceedings as the issue is no longer res-integra. The whole case therefore becomes infructous and as such Revision Application cannot be entertained at this stage. Revision application rejected - Decided against the applicant.

Summary

Issues Involved:
1. Admissibility of rebate claims for duty paid on exported goods.
2. Time-barred nature of supplementary rebate claims.
3. Applicability of provisions under Section 11B of the Central Excise Act, 1944.
4. Impact of the unit's status as a Domestic Tariff Area (DTA) unit versus a 100% Export Oriented Unit (EOU).

Detailed Analysis:

1. Admissibility of Rebate Claims for Duty Paid on Exported Goods:
The applicant, a manufacturer of "Refractory Bricks," initially operated as a DTA Unit and later converted to a 100% EOU. They exported goods and claimed rebates under Rule 18 of the Central Excise Rules, 2002. The initial rebate claims were sanctioned, and subsequent claims were filed following the receipt of additional amounts due to cost variance. The first rebate claim of Rs. 4,36,053/- was sanctioned and upheld by the appellate authority. The second rebate claim of Rs. 24,04,012/- was initially sanctioned in full, but a portion amounting to Rs. 5,33,932/- was contested as time-barred.

2. Time-Barred Nature of Supplementary Rebate Claims:
A Show Cause Notice was issued proposing to reject the supplementary rebate claim of Rs. 5,33,932/- on the grounds of being time-barred under Section 11B (5) (B) (a) (i). The original authority sanctioned the full rebate claim, but upon review, the appellate authority dismissed the department's appeal. The Joint Secretary (RA) later held that the rebate claim of Rs. 5,33,932/- was indeed time-barred, and this decision was upheld in subsequent proceedings.

3. Applicability of Provisions Under Section 11B of the Central Excise Act, 1944:
The applicant argued that the period of one year from the date of export mentioned in Section 11B (1) pertains to normal single consignment exports. They contended that their case involved a contract with a price variation clause, making the assessments provisional until the contract's finalization. They cited various judicial precedents to support their claim that the relevant date for filing the rebate claim should be the date of contract finalization, not the date of export. However, the adjudicating authority and subsequent appellate authorities held that the rebate claim for Rs. 5,33,932/- was time-barred as per Section 11B (5) (B) (a) (i).

4. Impact of the Unit's Status as a DTA Unit Versus a 100% EOU:
The original authority, in de novo proceedings, clarified that during the material period of export, the applicant was a DTA unit and not a 100% EOU. Therefore, the GOVERNMENT OF INDIA Revision Order No. 418/2011-CX dated 27.04.2011, applicable to 100% EOUs, was not relevant to this case. The adjudicating authority upheld the rebate of Rs. 4,36,053/- and sanctioned Rs. 18,70,080/- out of the Rs. 24,04,012/- claim, rejecting Rs. 5,33,932/- as time-barred.

Conclusion:
The Government observed that the applicant's challenge regarding the rejection of Rs. 5,33,932/- had already been settled in the first round of revisionary proceedings. The Revision Order dated 03.05.2011, which held the rebate claim time-barred, was not challenged further and thus attained finality. Consequently, the issue could not be raised again in the second round of revisionary proceedings. The Revision Application was rejected, and the rebate claim of Rs. 5,33,932/- remained inadmissible as time-barred.