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TMI Blog2012 (8) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-2012 - Shri D.P. Singh, Joint Secretary Shri P.S. Joshi, Advocate, for the Assessee. None, for the Department. ORDER This revision application is filed by the applicant M/s. Abicor Binzel Productions (India) Pvt. Ltd., Pune against the order-in-appeal No. PIII/162/09, dated 21-8-2009 passed by Commissioner of Central Excise (Appeals), Pune with respect to order-in-original No. P-VI/Rebate/273/CEX/2008, dated 30-6-2008 passed by the Deputy Commissioner, Central Excise, Pune-VI Division, Pune. 2. Brief facts of the case are that the applicant filed three rebate claims for duty amounting to ₹ 19,15,002/- and Education Cess ₹ 38,300/- in respect of goods exported on duty payment which was received on 28-2-2008. The claims were submitted enclosing therewith the photocopies, original and duplicate of the concerned ARE-1s which were of dated from 26-4-2005 to 15-6-2006. Corresponding Triplicate copies of invoices, photocopies of Bill of lading, photocopies of commercial invoice/packing list, copies of Shipping Bill (Exchange Control). The documents were therefore not properly filed. It was also noted that the claims were filed after the expiry of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se occurred has not caused any loss to revenue, on the contrary, it has resulted into heavy losses to the applicant itself. In ordinary prudence, applicant would not have acted in a way to affect itself adversely. However, applicant was refrained from taking necessary steps to company with the procedures regarding rebate claim, due to unavoidable circumstances as narrated above. The Commissioner has not considered any of the aforementioned grounds while passing the impugned order. The Commissioner ought to have considered and appreciated that procedural lapse cannot waive statutory right and if that being so, it is contradictory with the intent of the Legislature. 5. The case was listed for personal hearing on 1-6-2012 28-6-2012. Shri P.S. Joshi, Advocate appeared on behalf of the applicant who reiterated the grounds of revision application. Nobody attended the personal hearing on behalf of the respondents. 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 records, Government observes that the subjected rebate claim was rejected by the Jurisdictional Assistant Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay High Court in case of UOI (Revisionary Authority) v. M/s. EPCOS India Pvt. Ltd. Anr. - [2013 (290) E.L.T. 364 (Bom.)] has held that the period spent in prosecuting the proceedings bona fidely before the CESTAT, which had no jurisdiction, have to be; excluded by giving the benefit of the provision of Section 14 of Limitation Act, 1963 while reckoning the time limit for filing revision application. 10. In the instant case, the applicants have sought the condonation of delay as they have wrongly filed appeal before Hon ble CESTAT bona fidely and thereby prevented by sufficient cause. The order-in-appeal was received by the applicant on 4-9-2009 and they have filed appeal before CESTAT on 1-12-2009. The CESTAT order was issued on 16-9-2010 and they filed revision application received in this office on 9-11-2010. (a) Total time taken for filing the revision application : 4-9-2009 to 9-9-2010 : 1 year 4 days (b) Time taken for pursuing Appeal before CESTAT : 1-12-2009 to 16-9-2010 : 9 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim after a stipulated period of one year. In addition, he contended that delay in filing rebate claim is a procedural lapse and same may be condoned as the substantial benefit cannot be denied to them due to procedural infractions. In this regard, Government observes that filing of rebate claim within one year is a statutory requirement which is mandatory to be followed. The statutory requirement can be condoned only if there is such provision under Section 11B. Since there is no application has to be treated as time-barred. The cited case laws are of no help to the applicant because both of these pertains to different facts and circumstances i.e. one is in respect of delay in filing the required documents of proof of export as duty paid under protest subsequently and the second case law is for retrospective application of statutory extension granted in provisions of time limitation by amendment in law. 15. Government find support from the below mentioned judgments for the proposition that rebate claim filed after one year time limit stipulated in Section 11B of Central Excise Act, 1944 being time-barred is liable to be rejected. 16. Hon ble High Court of Gujarat in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, the Bombay High Court opined that limitation does not extinguish the right to claim refund, but only the remedy thereof. The Bombay High Court, therefore, observed as under : 32. In present case, when the exports were made in this year 1999 the limitation for claiming rebate of duty under Section 11B was six months. Thus, for exports made on 20th May, 1999 and 10th June, 1999, the due date for application of rebate of duty was 20th November, 1999 and 10th December, 1999 respectively. However, both the applications were made belatedly on 28th December, 1999, as a result, the claims made by the petitioners were clearly time-barred. Section 11B was amended by Finance Act, 2000 with effect from 12th May, 2000, wherein the limitation for applying for refund of any duty was enlarged from six months to one year . Although the amendment came into force with effect from 12th May, 2000, the question is, whether that amendment will cover the past transactions so as to apply the extended period of limitation to the goods exported prior to 12th May, 2000? 17. The Hon ble CESTAT, South Zonal Bench, Chennai in the case of Precision Control v. CCE, Chennai - 2004 (176) E.L.T. 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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