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TMI Blog2012 (12) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was filed on the grounds that the applicants had paid said amount of duty on the post removal expenses of ₹ 1,03,325/- which was otherwise not payable by them. The applicants were served with a show cause Notice on the grounds that both the claims i.e. rebate claim for ₹ 4,70,121/- and refund claim for ₹ 4,918/- filed on 10-09-2009, should not be rejected as time barred having filed stipulated one year in terms of provisions of section 118(1) of the Central Excise act, 1944. The original authority vide impugned Order-in-Original rejected the claim as time barred. 3.Being aggrieved by the said Order-in- original, Applicant firls appeal before commissioner (Appeals), who rejected the same. 4. Being aggrieved by the impugned Order-in-appeal, the applicant has filed this revision application under section 35 EE of Central ExciseAct, 1944 before Central Government on the following grounds: 4.1 The delay in filing the refund had be caused due to the lack of promptness in feeding the stuffing report by the superintendent of customs and shipping Line. It is submitted that even though the said goods were exported vide Bill No. 6474467 Dated 10-07-2008 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords and persued the impugned Order-in-original and order-in-appeal. 7. Government observes that the applicants rebate/refund claim was rejected as time barred by the original authority on the grounds that the same was filed after one year violation to proviso to section 11B (1) of the central Excise act, 1944. Commissioner (Appeals) rejected the appeal filed by the applicant. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 8. Government observes that the original authority rejected the rebate claim on the ground that rebate claim was filed after the prescribed time limit of one year as stipulated under section 11B of Central Excise Act 1644. The applicant stated that the relevant export documents and shipping bull were not provided to the applicant on time by the custome authorities at the port of export. The delay has occurred due to late receipt of E.P. copies from customs and therefore it cannot be attributed to them. 9. Government noted that as per explanation (a) to section 11B, refund includes rebate of duty of excise on excisable goods exported out of India or excisable materials used in the manufacture of goods whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiently clear. Sub-section (1) of section 11 E, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty which is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority or sufficient cause being shown. Secondly, we find tha the Apex court in the case of Mafatlal Insustries Lts. V. Union of India, (1997) 5 SCC 536 had the occasion to deal with the question of delayed claim of refund of customs and central excise. Per majority view, it was held that where refund claim is on the ground of the provisions of the central Excise and Customs Act whereunder duty is levied is held to be unconstitutional, only in such cases suit or writ petition would be maintainable. Other than such cases, all refund claims must be files and adjucticated under the Central Excise and Customs Act, as the case may be. Combined woth the said decision, if we also take into account the observations of the Apex court in the case of Kirloskar Pneumatic Company (supra), it would become clear that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims- Section 11B of Central Excise Act, 1944-Rule 12 of erstwhile Central Excise Act,1944 Rule 18 of the Central Excise Rules,2002.-Contextually, in the case of uttam sttels Ltd. Also, the Hon ble Bombay High Court allowed a belated rebate claim in a 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. 11.3 Further, it has been held by the Hon ble Supreme court in the case of collector Land Acquisition anantnag other vs. Ms. Katji others reprted in 1987 (28) ELT 185 (SC) 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 discretion to any authority to extend the time limit. 11.4 Hon ble Supreme Court has also held in the case of UOI vs. Kirloskar Pneumatics Company reported in 1996 (84) ELT 401 (SC) that High Court under Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely upon a Notification issued by the Central board of Excise and Customs on 1 may 2000. However, it is abundantly clear that this Notification predates the Manual which ahs been issued by the central Board of Excise and Customs. The requirement of the Manual is that it is only a self- attested copy of the shipping bill that is required to be filed together with the claim for rebate on duty paid on excisable goods exported. 12. For the aforesaid reasons, we hold that the authorities below were justified in coming to the conclusion that the petitioner had diled an application for rebate on 17 July 2007 which was beyond the period of one year from 12 february 2006 being the relevant date on which the goods were exported. Where the statue provides a period of limitation, in the present case in section 11B for a claim for rebate, the provision has to be compiled with as a mandatory requirement of law 12. In view of above position, the rebate claim filed after stipulated time limit of one year being time barred in terms of section 11B of Central Excise Act, 1944 is rightly rejected in this case,. Therefore, government finds no infirmity in the impugned Order- in appeal and u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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