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TMI Blog2016 (4) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... te document is on account of Central Excise Department or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point for computation of limitation. In view of the above, present writ petition succeeds and the same is allowed. The impugned judgment is set aside. The respondents are directed to allow the refund/rebate to the petitioner together with statutory rate of interest, applicable as per the Rules. - Decided in favour of assessee - D.B. Civil Writ Petition No.8552/2013 - - - Dated:- 4-11-2015 - MR. MOHAMMAD RAFIQ AND MR. ANUPINDER SINGH GREWAL, JJ For the Petitioner : Shri Gunjan Pathak with Shri Dinesh Kumar, counsel For the Respondent : Shri Sarvesh Jain, counsel ORDER BY THE COURT:- M/s Gravita India Ltd., petitioner herein, is a Company incorporated under the Companies Act, 1956. This company is engaged in manufacturing of lead and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India 2009 (233) E.L.T. 46 (Guj.). Petitioner also filed affidavit of its General Manager (Commercial) Shri Kishan Gopal Gupta, that after exportation of the consignment from the port of Export, the firm handed over copy of shopping bill, bill of lading and ARE-1 duly signed and endorsed evidencing exportation of the consignment in first week of September, 2009 and after receipt of the document rebate claim was filed in the office of the Assistant Commissioner, Central Excise Division-1, Jaipur on 10.09.2009. The Assistant Commissioner, however, vide Order-in-Original dated 18.08.2010, rejected the claim of refund of the petitioner. Aggrieved thereby, petitioner approached the Commissioner (Appeals)-I, Customs Central Excise, Jaipur, who also dismissed the appeal by order dated 02.02.2011. Petitioner thereagainst preferred revision application to the Central Government under Section 35EE of the Act of 1944, which too was rejected by respondent no.2 - the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. Hence this writ petition. Shri Gunjan Pathak, learned counsel for petitioner, submitted that the Joint Secretary to the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciating the fact that in case the correct information regarding generation of EP, copy of referred shipping bill was not coming from the Superintendent, Customs (Prev.), Jawahar Lal Nehru Customs House, Nhava Sheva, District Rajgarh, Maharashtra, it was obligatory on the Department to make another reference for obtaining the said information from the Customs Authorities, rather than rejecting the claim. Learned counsel for the petitioner, in support of the case, has relied on judgments in Dorcas Market Makers Pvt. Ltd. Vs. Commissioner of Central Excise 2012 (281) ELT 227 (Mad.), Dy. Commissioner of C. Ex., Chennai Vs. Dorcas Market Makers Pvt. Ltd. - 2015 (321) ELT 45 (Mad.), Exclusive Steels Pvt. Ltd. Vs. Union of India 2011 (267) ELT 586 (Guj.) and Collector, Land Acquisition Anantnag and Another Vs. Mst. Katiji and Others 1987 (28) E.L.T. 185 (S.C.). Per contra, Shri Sarvesh Jain, learned counsel for revenue, opposed the writ petition and argued that learned Assistant Commissioner has clearly stated the reason of issuing show cause notice in its Para 7, wherein it is stated that the claim is liable to be rejected not only on limitation but also on merit. The reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch duty and interest if any, paid on such duty had not been passed on by him to any other person. Second Proviso to Section 11B provides that limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Rule 18 of the Rules of 2002 provides that where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. The Notification dated 06.09.2004 has been issued by the Central Government in this behalf laying down in its Clause (2) the conditions and limitations for grant of rebate. Clause 3(b) of the Notification provides that claim of the rebate of duty paid on all excisable goods shall be lodged along with original copy of the application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as to case may be, the Maritime Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation in absolute terms. In other words, howsoever limited, an exception has been carved out in cases where the delay has occurred due to circumstances beyond control of the claimant assessee. In other words, in a case where the so called delay is on account of the lapse on part of the Central Excise Department or the Customs Department. 22. It is necessary to state and clarify here that mitigating circumstance as flowing from the aforesaid legislative scheme is one and one only viz. where the lapse as to nonavailability of requisite document is on account of Central Excise Department or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and in the circumstances on a conjoint reading of the provision and the instructions in the CBEC Manual there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. The Madras High Court in Dorcas Market Makers Pvt. Ltd. Vs. Commissioner of Central Excise, supra, in which claim petition was dismissed as barred by limitation, having been filed beyond one year and the dismissal was sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er helps the petitioner because in para 6 of the judgment, the Supreme Court observed that where the duty has been levied without authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder having no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. The division bench judgment of Bombay High Court in Everest Flavours Ltd. Vs. Union of India, supra, cited by the revenue, relating to Section 11B of the Central Excise Act, 1944, observed that Rule 18 of the Central Excise Rules, 2002, cannot be read independent of requirement of limitation prescribed in Section 11B. What was held was that mere presentation of an ARE-1 Form does not constitute the filing of a valid application for rebate. The judgment of Gujarat High Court in Indian Oil Corporation Ltd. Vs. Union of India, supra, is distinguishable on facts. There is no quarrel with proposition that if Statute provided for limitation, it has to be adhered to. What however is being claimed by the petitioner is different. The question which arises i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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