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TMI Blog2012 (10) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... this time limit - rebate claims are clearly time barred as they were filed after the time limit of one year as specified under Section 11B of Central Excise Act, 1944 - time barred rebate claim rejected - F. Nos. 195/487-489/ 2010-RA - 1404-1406/2011-CX - Dated:- 14-10-2011 - Shri D.P. Singh, J. REPRESENTED BY : S/Shri P.K. Shetty, Advocate and D.W. Deshpande, G.M., Indirect Tax, for the Assessee. [Order]. These revision applications have been filed by M/s. Positive Packaging Industries Ltd., against the order-in-appeal No. YDB/1-3/RGD/2010, dated 8-1-2010 passed by Commissioner of Central Excise (Appeals), Mumbai-II with respect to order-in-originals passed by the Asst. Commissioner, Central Excise, Khopoli Division, Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) and already settled not in dispute. The instant supplementary claims are against additional consideration arose on account of the distribution agreement for which the debit note/supplementary invoice itself were raised in September, 2007 and duty also paid on 30-9-2007. The payment of said supplementery claims received only on 13th December 2007. It is settled law by the Tribunal that as long as initial claims were filed within time and honoured, supplementary claims. In such situation the Applicants submit that Explanation (B)(f) under Section 11B of Central Excise Act, 1944 will only apply. Therefore the order of Commissioner (Appeals) rejecting the rebate claim is legally not sustainable and liable to be quashed and set aside. 4.2 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of Commissioner (Appeals) rejecting the rebate claim is legally not sustainable and liable to be quashed and set aside. 4.3 The Commissioner (Appeals) erred in not considering the submission of Applicants that in respect of supplementary invoice No. 173, 174 and 179 the date of shipment was 20-8-2006, 20-8-2006 and 25-9-2006 respectively. The Applicants submit that without prejudice to their aforesaid contention since duty itself was paid after one year from the date of shipment question of claiming the refund within said stipulated time does not arise. Therefore refund of duty Rs. 2,49,879/- paid vide said invoices is correctly governed by Clause (B)(f) under Explanation to Section 11B of Central Excise Act, 1944. The Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable and if the same is paid, the provissions of refund of duty will not apply in such cases. Hence the question of date of shipment or even one year from the date of payment for the purpose of relevant date is not applicable. The Commissioner (Appeals) erred in not considering this vital submission and therefore the order of the Commissioner (Appeals) is liable to be quashed and set aside. 4.7 The Applicants submit that they are not required to pay duty in the instant case. Even if duties are paid by mistake and also collected by the Revenue without any authority of law and by mistake, then Revenue is required to refund the same to the exporter. 5. Personal hearing held on 24-8-2011 was attended by Shri P.K. Shetty, Advocate, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orily applicable for the grant of impugned rebate claims which have (undisputedly) been filed after one year of the dates of shipments of impugned export goods. As per provisions of Section 11B(1), the rebate claim is to be filed with one year from the relevant date as defined in Explanation (B). The Explanation (B)(a)(i) defines relevant date in case of goods exported out of India as a date on which ship or aircraft in which such goods are loaded leave India. The clause (b) to (f) of said Explanation B relate of refund of duty in other situation and not in case of export of goods out of India. So, the pleading of the applicant that his case is covered under clause (B)(f) where relevant date is defined as in any other case, the date of pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9.2 Further, it has been held by the Hont ble Supreme Court in the case of Collector Land Acquisition Anantnag Others v. Mst. Katiji 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 judgement. But when there is no such condonable limit and the claim is filed beyond time period prescribed by statute, then there is no discret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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