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TMI Blog2015 (9) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation, the rules cannot prescribe over a different period of limitation or a different date for commencement of the period of limitation. In this case, sub-section (1) of Section 11B stipulates a period of limitation of six months only from the relevant date. The expression relevant date is also defined in Explanation (B)(b) to mean the date of entry into the factory for the purpose of remake, refinement or reconditioning. Therefore, it is clear that Section 11B prescribes not only a period of limitation, but also prescribes the date of commencement of the period of limitation. Once the statutory enactment prescribes something of this nature, the rules being a subordinate legislation cannot prescribe anything different from what is prescribed in the Act. Under the proviso (i) to Rule 173L, the Commissioner is given the discretion to extend the period of one year stipulated therein by a further period not exceeding one more year. In other words, the Commissioner has the power and discretion under proviso (i) to Rule 173L to entertain an application within a total period of two years. This is a case where the Commissioner should have at least exercised the said discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the appellant on 30.6.97, the buyer returned 252 pumps under an invoice dated 22.3.99. The goods were actually received in the factory premises of the appellant on 15.4.99. The return was in terms of Rule 57F(3) of the Central Excise Rules, 1944. (c) While the duty paid on 300 pumps supplied by the appellant was ₹ 5,53,033/-, the duty involved on the returned goods was ₹ 4,63,783/-. Therefore the appellant filed D3 intimation on 16.4.99 with the jurisdictional Central Excise Officer. (d) Thereafter the appellant subjected the fuel injection pumps to a further process of manufacture and supplied them to another company by name M/s TELCO. The sale and supply were made under the invoice dated 11.10.99. After selling the returned goods to a different customer under the invoice dated 11.10.99, the appellant made a refund claim for ₹ 4,63,783/- on 14.10.99. (e) All the three authorities rejected the claim for refund on the basis of Rule 173L of the Central Excise Rules, 1944 contending that the return of goods did not take place within a period of one year from the date of payment of duty. Hence the appellant is before us. 5. The claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any other case, the date of payment of duty. 6. However, Rule 173L(1) states under proviso (i) that the claim for refund on returned goods may be admitted only if such goods had been returned to the factory within one year of the date of payment of duty or within such further period not exceeding one year in the aggregate. Sub-rule (1) of Rule 173L together with provisos thereunder is reproduced as follows:- Rule 173L. Refund of duty on goods returned to factory.-- (1) The Commissioner may grant refund of the duty paid on manufactured excisable goods issued for home consumption from a factory, which are returned to the same or any other factory for being re-made, refined, reconditioned or subjected to any other similar process in the factory: Provided that - (i)such goods are returned to the factory within one year of the date of payment of duty or within such further period or periods not exceeding one year, in the aggregate, as the Commissioner may, on sufficient cause being shown, permit in any particular case; (ii)the assessee gives information of the re-entry of each consignment of such excisable goods into the factory to the proper officer in writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation or a different date for commencement of the period of limitation. In this case, sub-section (1) of Section 11B stipulates a period of limitation of six months only from the relevant date. The expression relevant date is also defined in Explanation (B)(b) to mean the date of entry into the factory for the purpose of remake, refinement or reconditioning. Therefore, it is clear that Section 11B prescribes not only a period of limitation, but also prescribes the date of commencement of the period of limitation. Once the statutory enactment prescribes something of this nature, the rules being a subordinate legislation cannot prescribe anything different from what is prescribed in the Act. In other words, the rules can occupy a field that is left unoccupied by the statute. The rules cannot occupy a field that is already occupied by the statute. 9. But, unfortunately, proviso (i) of sub-rule (1) of Rule 173L prescribes the date of commencement of the period of limitation. Though Mr.A.P.Srinivas, learned standing counsel strenuously contended that the apparent conflict between Explanation (B) to Section 11B(1) and the proviso (i) under Rule 173L(1) are not really conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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