9911796707
TMI Blog2004 (7) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... s further observed that, if really the payment of duty was under a mistake of law, the appellants were at liberty to take recourse to alternative remedy. In the case of Doaba Co-Operative Sugar Mills [ 1988 (8) TMI 103 - SUPREME COURT] also, it was held by the Supreme Court that authorities functioning under an Act were bound by its provisions and that, if proceedings were taken under the Central Excise Act by the department, the provisions of limitation prescribed under the Act would prevail. Here, again, their lordships observed that it was open to the department to initiate proceedings in the Civil Court for recovery of the amount due from the assessee. We note that this Tribunal followed the above rulings of the Apex Court and held, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts of duty mentioned below relating to five consignments of goods exported on the respective dates mentioned below : - Sl. No. Date of export Amount of duty Rs. 1. 10-12-1999 3,46,000/- 2. 18-7-2000 41,695/- 3. 5-9-2000 41,400/- 4. 4-12-2000 1,62,658/- 5. 26-8-2001 17,625/- The claim for rebate of the amounts of duty mentioned at Sl. Nos. 1 to 4 above was under Rule 12 of the Central Excise Rules, 1944 and the rebate claim at Sl. No. 5 was under Rule 18 of the Central Excise (No. 2) Rules, 2001. Section 11B of the Central Excise Act treated rebate claims on par with refund claims and prescribed a period of limitation for both. This period of limitation, prior to the amendment of Section 11B effective from 12-5-2000, was six months. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it specified in Section 11B of the Central Excise and Salt Act, 1944 (1 of 1944). Section 11B of the Central Excise Act expressly provides that any amount of duty of excise determined by the Assistant Commissioner/Deputy Commissioner of Central Excise for refund to a claimant shall be paid to him, instead of being credited to the Consumer Welfare Fund, if such amount is relatable to rebate of duty of excise on excisable goods which the latter has exported out of India. The period of limitation for such refund is reckoned from the relevant date which, insofar as a claim for rebate of duty on goods exported out of India is concerned, is the date of export, i.e., the date of shipment. 2. In the instant case, the refund claim relating to rebate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this context, the Counsel referred to condition No. (iv) and argued that the requirement of filing rebate claim within the time limit specified in Section 11B of the Central Excise Act was a condition laid down in the Notification and therefore, where such condition had not been complied with by the claimant, the Commissioner could exercise his authority under Rule 12 and allow the rebate claim, if he was satisfied that the goods had, in fact, been exported. In the instant case, the Commissioner failed to do so. These arguments of ld. Counsel were opposed by the DR on the strength of the following case law :- (i) CCE v. Doaba Co-Operative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.) (ii) Miles India Ltd. v. ACC - 1987 (30) E.L.T. 641 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application for rebate of duty is not made within the period of limitation, the accrued right to rebate of duty lapses. Therefore, if the application for rebate of duty is not made within the period of limitation prescribed under Section 11B, only the remedy is barred and not substantive right to claim rebate of duty accrued under Rule 12. In other words, the limitation prescribed under Section 11B only deals with the procedural law and not the substantive law. Relying on the above ruling, ld. Counsel has argued to the effect that the substantive right to claim rebate of duty under Rule 12 cannot be defeated on the procedural ground of limitation prescribed under Section 11B. We are afraid, this argument stems from a misunderstanding of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its provisions and that, if proceedings were taken under the Central Excise Act by the department, the provisions of limitation prescribed under the Act would prevail. Here, again, their lordships observed that it was open to the department to initiate proceedings in the Civil Court for recovery of the amount due from the assessee. We note that this Tribunal followed the above rulings of the Apex Court and held, in the case of Rasoi Limited (supra), that the departmental authorities had no power to relax the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 for a claim for rebate of duty. In the said case, certain High Court judgments allowing rebate claims filed beyond the statutory time limit were distingu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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