9911796707
TMI Blog2012 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... their viz. 360 bags of Fast Blue Base Dyes under ARE-1 No. 35/06-07, dated 23-9-2006 and invoice No. 53, dated 23-9-2006 on which Central Excise duty amounting to Rs. 3,96,576/- was paid through Cenvat debit entry No. 137/12, dated 23-9-2006. The assessee filed a rebate claim of Rs. 3,96,576/- on 21-11-2007 to the Assistant Commissioner, Central Excise Customs, Aurangabad-III Division under Notification No. 19/2004-CX. (N.T.), dated 6-9-2004 issued under Rule 18 of Central Excise Rules, 2002 in respect of duties paid on excisable goods exported. On scrutiny of the claim, it was observed that the date of shipment of the said export was 28-9-2006 and thereby the rebate claim was hit by time limitation of one year as prescribed under Section 118 of the Central Excise Act, 1944. Therefore, a show cause notice under F.No.V/18-472/TD/Reb/07-08, dated 23-11-2007 was issued to the assessee as to why the rebate claim of Rs. 3,96,576/- should not be rejected being filed after expiry of one year. 2.1 Vide order-in-original No. R-105/CEX/AC/2008, dated 12-5-2008, the Assistant Commissioner, Central Excise and Customs, Aurangabad-III Division has rejected the rebate claim amounting to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B (sic). 3.2 Central Board of Excise and Customs has issued Manual of Supplementary Instructions to carry out the purpose of the Act. Paragraph 2.4 of the Chapter IX appearing in said Manual of Supplementary Instructions (C.B.E.C. Manual of New Procedure as on 1-9-2001), reads as under : It may not be possible to scrutinize the claim without the accompanying documents and decide about the admissibility. If the claim is filed without requisite documents, it may lead to delay in sanction of the refund. Moreover, the claimant of refunds entitled for the interest in case refund is not given within three months of filing of claim. Consequently, submission of refund claim without supporting documents will not be allowed. Even if claim is filed by post or similar mode, the claim should be rejected or returned with query memo. The claim shall be taken as filed only when all relevant documents are available. In case any document is not available for which the Central Excise or Customs Department is solely accountable, the claim may be received so that the claimant is not hit by limitation period. Obviously, provision has been made that claim should be accepted even withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manual as well as the settled case laws on the subject issue. 4.2 It is claimed and submitted that when the issue has been discussed and decided in favour of the respondents/assesses in number of cases by various judicial forums, the rejection of the impugned rebate claim amounts ignoring the law laid down by the judicial forums which in fact is binding on the departmental authorities including the Commissioner (Appeals) in view of the Apex Court decision in the case of Kamalakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (S.C.)]. In the following cases the issue has been appropriately discussed and decided : Cosmonaut Chemicals, 2009 (233) E.L.T. 46 (Guj.) Uttam Steel Ltd., 2003 (158) E.L.T. 274 (Bom.) 5. Personal hearing scheduled in this case on 23-6-2011 and 27-7-2011 was neither attended by respondent nor filed any request for adjournment of case. Similarly department also did not attend hearing. As such Government takes up the case for decision on the basis of available case records and written submissions. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed there under must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. 9.2 The Hon ble High Court of Gujarat in the case of Alembic Glass Ind. Ltd. v. Union of India reported at 1992 (60) E.L.T. 64 (Guj.) held in para 11, as under : That the claim was required to be made within the prescribed period of six months from the relevant date. The relevant date would be the date on which the goods re-entered the factory. In this case it would be January 4, 1988 and January 9, 1988 as provided in sub clause (b) of Clause B of Explanation to Section 11B of the Act. Thus the period of six months would expire on July 8,1988 while the claim has been preferred on March 29, 1989. The Assistant Collector is bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 - Rule 18 of the Central Excise Rules, 2002 - Contextually, in the case of Uttam Steel Ltd., also the Hon ble Bombay High Court allowed a belated rebate claim in a Writ Petition filed by the assessee. This Tribunal, acting under the provisions of the Central Excise Act, has no equitable or discretionary jurisdiction to allow any such claim de hors the limitation provisions of Section 11B. The ruling of the Apex Court are to be followed. It has been held by their Lordships that authorities working under the Central Excise Act and the Customs Act have no power to relax the period of limitation prescribed under Section 11B and Section 27 respectively of the two Acts. Therefore, the delay of the rebate claims filed by the applicants is not condoned. 9.4 Further, it has been held by the Hon ble Supreme Court in the case of Collector Land Acquisition Anantnag Others v. Mst. Katji Others reported in 1987 (28) E.L.T. 185 (S.C.) that when delay is within condonable limit laid down by the statute, the discretion vested in the authority to condone such delay is to be exercised following guidelines laid down in the said judgment. But when there is no such condonable limit and the cl ..... 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