9911796707
TMI Blog1995 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods that were exported for the period April, 1990 to December, 1991, the appellants filed an application for refund to the department in respect of the Modvat credit accrued on inputs used in the manufacture of Analgin exported to foreign countries. The appellants made a claim for refund in terms of Rule 57F(3) read with Notification No. 85/87, dated 1-3-1987 issued under Rule 57F(3) of the Central Excise Rules, 1944 seeking refund of the Modvat credit attributable to the duty paid on inputs utilised in the export of the end product. The authorities scrutinised the refund claim submitted by the appellants with the relevant documents such as RG 23A, Part II register and proof of export evidenced by the necessary shipping bills and other documents and the amount was refunded after thorough scrutiny of all statutory and other records. Subsequently, proceedings were instituted against the appellants by the department by issue of a show cause notice dated 19-1-1993 invoking the longer period of limitation under proviso to Section 11A of the Act inter alia alleging that the appellants had misdeclared and suppressed the actual quantity of input used in the manufacture of Analgin an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the departmental instructions, deeper scrutiny is made at various levels and it is only after a final administrative scrutiny of the Collector, the refund amount is granted and therefore, after going through all the records and on application of mind when the statutory authorities have granted the refund, the same cannot be reopened on grounds of suppression. It was further urged that goods exported conformed to German pharmacopoeia and the Director General of Technical Division, Madras, in their letter dated 12-4-1991 has clearly specified the quantity of raw materials for 1 kg of Analgin of DAB standard and only on this basis claim of refund was made. The learned Counsel further urged that the notification issued under Rule 57F is binding on the department and therefore, even if Section 11A is held applicable so far as departmental authorities are concerned, the period of six months specified in Clause 4 of the notification would come into operation and this is being a special period of limitation under a special notification issued under Rule 57F governing grant of refund in respect of the duty suffered by inputs used in that manufacture of products exported, by necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t context of the case reads as under :- Rule 57F. Manner of utilisation of the inputs and the credit allowed in respect of duty paid thereon. - (1) The inputs in respect of which a credit of duty has been allowed under rule 57A may - (i) be used in, or in relation to, the manufacture of final products for which such inputs have been brought into the factory; or (ii) be removed, subject to the prior permission of the Collector of Central Excise, from the factory for home consumption or for export on payment of appropriate duty of excise or for export under bond, as if such inputs have been manufactured, in the said factory : Provided that where the inputs are removed from the factory for home consumption on payment of duty of excise, such duty of excise shall in no case be less than the amount of credit that has been allowed in respect of such inputs under rule 57A. (1A) Notwithstanding anything contained in clause (ii) of sub-rule (1), the inputs in respect of which a credit of duty has been restricted in terms of proviso to rule 57A, may be removed subject to prior permission of Collector of Central Excise from the factory for home consumption on payment of duty of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, conditions and limitations as may be specified by the Central Government in the Official Gazette : Provided further that no such refund of credit of duty shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties (Drawback) Rules, 1971, or claims rebate of duty under rule 12 A, in respect of such duty. Provided also that the credit of specified duty in respect of inputs used in the final products cleared either to a unit in a Free Trade Zone or to a hundred per cent Export Oriented Unit under bond shall be allowed to be utilised towards payment of duty of excise on similar final products cleared for home consumption on payment of duty. (4) Any waste, arising from the processing of inputs, in respect of which credit has been taken may - (a) be removed on payment of duty as if such waste is manufactured in the factory; or (b) be removed without payment of duty, where it belongs to such class or category of waste as the Central Government may from time to time by order specify for the purpose for being used in the manufacture of the class or categories of goods as may be specified in the said order, subject to the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise in whose jurisdiction the factory from which the goods are exported is situated together with the Bill of Lading or Shipping Bill or Export Application duly certified by the Customs Authorities to the effect that goods have in fact been exported. 6. The refund shall be allowed only in those circumstances where a manufacturer is not in a position to utilise the credit of the duty allowed under rule 57A against goods exported during the quarter to which the claim relates. 7. The application for refund together with the proof of due exportation and the relevant extracts of form RG 23A in original are lodged with the Assistant Collector of Central Excise before the expiry of the period specified in Section 11B of the Central Excises and Salt Act, 1944 (1 of 1944). 8. The refund of excise duty shall be allowed by the said Assistant Collector of Central Excise." Form A specified under Rule 57F, are also extracted hereunder : FORM `A (See para 5 of Appendix) Application for refund of duty under rule 57F of the Excise Rules, 1944 (Refund relating to quarter ) To, The Assistant Collector of Central Excise, Sir, I/We have exported undermentioned quantity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ____________________ Shri/Messrs ________________ for (Rs. _________). Rs. __________. Chief Accounts Officer. Received ____________ Cheque No. ___________dated ___________for Rs._________ (Rs.__________). Dated:___________ Signature of claimant 6. The notification issued under Rule 57F extracted above would make it clear that the refund claims have to be submitted by the exporter not more than once in any quarter in a calendar year. Thus, it would be seen that this is a special condition which normally does not apply to other refunds under the Act. We further note that Clause 4 of the notification makes it clear that the manufacturer should undertake to refund to the Assistant Collector of Central Excise on demand being made within six months from the date of the payment any refund erroneously paid to him. It would be seen that the legislature in its wisdom in a statutory notification issued in exercise of a statutory power under Rule 57F has also incorporated a built-in period of limitation of six months in respect of refund erroneously paid. Therefore, the Tribunal being a creature of statute has no jurisdiction to traverse beyond the confines of law and read into it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty from the buyers in respect of Section 11D where no time-limit is prescribed, Section 11A should be applied and therefore on the same analogy in the present case also the extended time-limit should be held applicable. We are not in a position to accede to the above plea of the learned DR because the Modvat credit cannot be considered as an excise duty as such and apart from it the ruling of the Madras High Court deals with a different situation with reference to the applicability of the doctrine of unjust enrichment, in the context of enforcing Section 11D where no time-limit is prescribed and in the present case when there is a specific rule and a specific notification issued under that rule prescribing a built-in specific period of limitation excluding Section 11A and its application; the Tribunal being a creature of the statute cannot traverse out of the statutory provisions and incorporate and read it into the notification something which is not there. From a plain and literal interpretation of the notification in question particularly with reference to the period of limitation of six months, we hold that in the facts and circumstances for recovery of the refund alle ..... 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