9911796707
TMI Blog2012 (4) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006. The shipping bill was provisionally assessed on 10 February 2006. The goods were actually exported on 12 February 2006. A finally assessed copy of the shipping bill is stated to have been handed over to the petitioner on 25 June 2007. On 17 July 2007 the petitioner filed two applications claiming a rebate of the Central Excise duty paid on goods which were exported. The petitioner was called upon to show cause by the Assistant Commissioner (Rebate) why the claim should not be rejected. By an order dated 21 September 2007 the Assistant Commissioner rejected the claim for rebate filed by the petitioner. The order was confirmed in appeal by the Commissioner of Central Excise (Appeals). A Revision Application filed by the petitioner has been rejected by the Joint Secretary to the Union Government in the Ministry of Finance. 2. The ground on which the rebate claim filed by the petitioner has been rejected is that it has been filed beyond the period of limitation prescribed by Section 11B of the Central Excise Act, 1944. Under Section 11B a claim for the refund of duty has to be made within a period of one year from the relevant date; the expression relevant date being defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self attested copy of the shipping bill. Consequently, the period of limitation would not stand extended to the date when an export promotion copy of the shipping bill was handed over to the petitioner. 5. The rival submissions now fall for consideration. Section 11B stipulates that any person claiming refund of any duty of excise and interest may make an application for refund to the Assistant Commissioner of Central Excise, or as the case may be, to the Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and that application shall be accompanied by such documentary or other evidence establishing, inter alia, the duty paid character of the goods. Explanation (A) to Section 11B specifically provides that the expression refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Explanation (B) defines the expression relevant date . Clause (a) of Explanation (B) provides that in the case of goods exported out of India where a refund of excise duty paid is available in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the various circumstances enumerated in Section 11-A. Hence, on its own terms, it was held that Section 11A will have no application or operation to cases covered under Rule 57-I. The Supreme Court ruled that the situation on hand and the one which is to be dealt with under Rule 57-I as it stood prior to amendment, did not fall under any of those contingencies provided in Section 11A. 8. In contrast, in so far as Section 11B is concerned, the provision categorically comprehends a rebate of excise duty on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Since the statutory provision for refund in Section 11B brings within its purview, a rebate of excise duty on goods exported out of India or materials used in the manufacture of such goods, Rule 18 cannot be read independent of the requirement of limitation prescribed in Section 11B. The Judgment of the Supreme Court in Raghuvar dealt with a situation where Section 11A did not bring within its purview an action for the recovery of MODVAT credit wrongly availed of which formed the subject matter of Rule 57-I. It was in this view of the matter that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the identity of goods mentioned in the application, the particulars of the duty paid or payable and if found in order, shall seal each package or the container and endorse each copy of the application in token of having carried out the examination. The original and duplicate copies of the application are returned to the exporter. The triplicate copy of the application is to be sent to the Officer with whom a rebate claim is to be filed either by post or by handing over to the exporter in a sealed cover after posting the particulars in the official record or to be sent to the Excise Rebate Audit Section at the place of export in case rebate is to be claimed by electronic declaration. Sub-clause (b) of Clause (3) of the Notification makes a provision for presenting a claim for rebate of Central Excise duty in the following terms: (b) Presentation of claim for rebate to Central Excise:- (i) Claim of the rebate of duty paid on all excisable goods shall be lodged along with original copy of the application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rebate. An application for refund has to be filed, together with documentary material as required. We , therefore, do not accept the second submission which has been urged on behalf of the petitioner. 11. Finally it has been sought to be urged that the filing of an export promotion copy of the shipping bill is a requirement for obtaining a rebate of excise duty. This has been controverted in the affidavit in reply that has been filed in these proceedings by the Deputy Commissioner (Rebate), Central Excise. Reliance has been placed in the reply upon Paragraph 8.3 of the CBEC Manual to which a reference has been made above, and on a Trade Notice dated 1 June 2004 which is issued by the Commissioner of Central Excise and Customs. Paragraph 8.3 of the Manual makes it abundantly clear that what is required to be filed for the sanctioning of a rebate claim is, inter alia, a self attested copy of the shipping bill. The affidavit in reply also makes it clear that under the Central Excise Rules, 2002 there are two types of rebates : (i) A rebate on duty paid on excisable goods and (ii) A rebate on duty paid on material used in the manufacture or processing of such goods. The first kin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
