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TMI Blog2014 (12) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... dent vide letter dated 15.04.2009 intimated that as they were unable to produce relevant Bank Realization Certificates, the rebate claim filed by them may be treated as cancelled. However, the respondent vide letter dated 22.10.2012 submitted the relevant BRCs and requested for payment of their rebate claim. As the respondent themselves requested for cancellation of the rebate claims, the rebate claims were rejected by the original authority holding that their original claims being no more live for consideration, as the claims filed on 22.10.2012 were barred by limitation of time as stipulated under Section 11B of Central Excise Act, 1944. 2.2 Aggrieved with the rejection of claims, the respondent had filed appeals with Commissioner (Appeals), Central Excise Ghaziabad who allowed the appeals with consequential benefits vide Orders-in-Appeal No. 05-09-CE/GZB/13 dated 29.01.2013 holding that "the rebate sanctioning authority is also directed to consider the rebate claims on merit in terms of Notification No. 19/2004-CE(NT) dated 06.09.04 as amended read with the provisions given under Chapter 8 of Excise Manual(CBEC- Supplementary Instructions 2008-09 and pass a speaking order." 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancelled tantamounts to withdrawal of their said rebate claim from the Department and same were no more live or pending for any decision with the Department; therefore the subsequent letter dated 27.04.2010 or letter dated 22.10.2012 submitted by the party asking the Department to consider the said rebate claim, amounted to fresh filing of rebate claim. Obviously, the claim of rebate by the said subsequent letters dated 27.04.2010 & 22.10.2012, are time barred in view of the time limit of one year prescribed for claiming rebate under Section 11 B of the Central Excise Act, 1944. 4.4 The Hon'ble Tribunal in the case of SUDHIR PAPERS LTD). Versus COMMISSIONER OF C.EX.,. BANGLORE report in 2009 (234) E.L.T. 368 held that when the refund claim is withdrawn by the claimant subsequently then same cannot be said to be'pending with the Department and any subsequent claim in that regard will attract the provisions for limitation of time period. Para 4 of the said judgment is reproduced below: " The refund application for the period November 2000 to March 2001 was originally filed on 29-11-2001. It appears from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported. But in the present case the issue before the Commissioner (Appeals) was the admissibility of refund claim which was barred by limitation. Thus, the reliance on the case of M/s Grasim Industries Vs CCE Madras case (1996 (82) ELT 457 Mad) by Commissioner (Appeals) is misplaced. 5. Show cause notices were issued to the respondent, who vide their written replies desired to be heard in person. 6. Personal hearing was fixed in these cases on 29.09.2014. Nobody attended hearing on behalf of the applicant department. Shri Kuiwant Singh, Director of the respondent company attended hearing on behalf of the respondent. 7. Government Observes that the respondent filed the rebate claims for duty paid by them at the time of export. The Respondent subsequently wrote a letterdated 15.04.2009 to department asking them to cancel their rebate claims as they were not able to submit copies of BRCS. Later on, the respondent vide letter dated 22.10.2012 submitted the relevant BRCs and requested sanction of their rebate claims, which were rejected by the original authority by holding that the original claims being no more We for consideration, fresh rebate claims filed on 22.10.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 29.01.2013 had allowed the appeals filed by the respondent holding that the rebate claims were pending for decision as no appealable orders had ever been passed either for rejection or otherwise and alter submission of Bank Realization Certificates (BRCS), the rebate sanctioning authority had returned the claims holding the same to be barred by limitation of time period stipulated under Section 11 B of the Central Excise Act, 1944. I find that the respondent had submitted the rebate claims well within time limit prescribed and the respondent vide fetter dated 15.04.2009 had requested for cancellation of their rebate claims due to non submission of BRCS Subsequently, the respondent vide letter dated 22.10.2012 requested for sanction of the rebate claims after submission of BRCs The then Commissioner (Appeals) justifiably held that the respondent's letter dated 22.10.2012 could not be considered as fresh rebate claim and the date of filing of claims would remain the same on which they were filed. I And that neither Rule 18 of Central Excise Rules, 2002 nor the notification issued there under prescribes BRC as one of the documents required for filing or sanctioning a rebate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be the reason for rejection, if such export proceeds are realized subsequently within prescribed statutory time limit or extended time granted by the RBI. On perusal of documents submitted by the respondent it is observed that he has submitted the impugned BRCs after stipulated time limit. Further, they could not produce any extension of time limit granted by RBI. Under such circumstances, Government holds that the appellate authority is correct that mere cancellation request of the respondent cannot be treated as closure of rebate claim, provided the BRCs are submitted within the extended time limit by the RBI. Otherwise, if no such extension is granted, then rebate claims would be treated as time barred as contested by the revenue. Under such circumstances, in the interest of justice, Government is of the opinion that cases may be remanded back to decide the same afresh. The respondents are required to submit formal extension of time limit by the RBI within 90 days of receipt of this order. 10. In view of the above discussions, Government sets aside impugned orders-in-appeal and remands the cases back to original authority to decide the same afresh in view of above observat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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