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TMI Blog2017 (6) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act - the contention of the appellant that no time limit is prescribed in the notification could not be accepted in view of proviso (a) to subsection (ii) of Section 11B of the Central Excise Act. Therefore, reading of Rule 18, there is no specific relevant date prescribed in the Notification to the effect that the relevant date on which final products or goods was cleared for export. Admittedly, the goods were exported on 10.11.2008 and 15.11.2008. Thereafter, the appellant paid additional duty on 15.11.2008. The claim of rebate of duty made by the appellant company on 27.11.2009 by claiming that period of limitation is within one year under Section 11B of the Act - it is not correct to claim that the relevant date is only from the date of payment of additional duty subsequent to the goods exported by the company. Appeal dismissed - decided against appellant. - Writ Appeal No. 11 of 2016 - - - Dated:- 18-4-2017 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. S. Muthuvenkataraman for M/s. K. Magesh For the Respondents : Mr. A. P. Srinivas, Senior Standing Counsel JUDGMENT ( Judgment of the Court was delivered by D. Krishnakumar, J) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27.11.2009. Considering the case of the appellant and after perusing the materials on record, the Commissioner (Appeals), by order dated 23.2.2011, rejected the appeal in Appeal No.16 of 2011, holding that the adjudicating authority was right in rejecting part of the claim as time barred as the relevant date is date of export as provided u/s.11B(B)(a)(i) of the Central Excise Act, 1944. Against this order, the appellant filed a revision application before the Ministry of Finance, Government of India, under Section 35EE of the Central Excise Act, 1944. The revisionary authority vide order No.378/14-cx dated 11.12.2014 held that original and the appellate authority has rightly rejected the rebate claim which was filed beyond the stipulated one year period. Challenging the aforesaid order, the appellant company filed a Writ Petition in W.P.No.9062 of 2015 before this High Court to issue a writ of Certiorarified Mandamus seeking to quash Order No.378/14-cx dated 11.12.2014 passed by the revisionary authority and to direct the 2nd respondent to refund the balance rebate claim of ₹ 28,89,150/- to the appellant. By order dated 07.10.2015, the Writ Court dismissed the Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as all the other conditions prescribed in the Notification No.41/94-CE (NT) are retained in the Notification No.19/2004 CE (NT). It is not in dispute that neither Notification No.19/2004 CE (NT) nor Rule 18 has a condition with regard to limitation of time. Even prior to Notification No.41/94 CE, the time limit for filing rebate claim was mandatory in terms of Notification No.27/89-CE (NT) dated 9.6.1989 which amended the Notification 197/62-CE (NT), which has been omitted now as per Notification No.19/2004-CE (NT). In the absence of any prescription in the scheme, the rejection of application for refund as time barred is unjustified. 5. Adding further, the learned counsel for the appellant submitted that Notification No.19/2004-C.E.(NT) is a beneficial notification and its aim is to encourage exports. In support of his contention, he placed reliance on the decision rendered in the case of Kosmos Health Care vs. Assistant Commissioner, Central Excise, Kolkata [2013-297-ELT-45]. The learned Judge was bound to follow the ratio laid down by this Court in the case of Dy.Commissioner of Central Excise, Chennai, versus Dorcas Market Makers Pvt.Ltd., [2015 (321) E.L.T 45 (Mad.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person: (2)........ (3)....... (4)...... (5)...... [Explanation For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. Therefore, Section 11B totally controls rebate. The learned standing counsel further submitted that section 37 (2)(xvi) of the Central Excise Act provides for the Central Government to make rules for grant of rebate in respect of export of goods. 9. The learned Standing Counsel further submitted that according to the said Rules, it is merely an ancillary provision only and not substantial provision to grant benefit. Further, it is submitted that the notification issued under the said Rule prescribes a format. Subsequent to the decision relied on by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the order of the Assistant Commissioner, preferred an appeal before the Commissioner (Appeals) and contended that the payment should be reckoned as the relevant date for claim filed on 27.11.2009. Therefore, the claim made by the appellant is within the period of limitation. The aforesaid appeal was dismissed by the Commissioner of Central Excise (Appeals) on 23.2.2011 in Appeal No.16/2011. Against the aforesaid order, the company preferred a Revision before the Government of India, New Delhi, under Section 35 EE of the Central Excise. The Government of India, by an order No.378/14-CX, dated 11.12.2014, has rejected the rebate claim by the appellant. Thereafter, the appellant filed a Writ Petition in W.P.No.9062 of 2015 before this Court and the same was dismissed on 7.10.2015 by the Writ Court. Now, the appellant has filed the instant Appeal before this Court. 12. The point for consideration is two folds:- (i) Rule 18 of the Central Excise Rules 2002 is an independent one and Section 11B of the Central Excise Act, 1944 is not applicable for rebate of duty for the export of goods for submitting the claim application within the period of limitation. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to a foreign port or supplied to a foreign going aircraft. 16. Section 11B of the Central Excise Act, 1944 reads as follows:- Section 11B. Claim for refund of duty- (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty had not been passed on by him to any other person: (2)........ (3)....... (4)...... (5)...... [Explanation For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the procedure for filing electronic declaration had not been made. Since everything was made manually at that time, the notification of the year 1994 prescribed a time limit for filing claim. But, the 2004 notification did not contain the prescription regarding limitation. This was a conscious decision taken by the Central Government and hence, the view taken by the learned Judge is fair and reasonable. 17. Coming to the decisions relied upon by the learned Senior Central Government Standing Counsel, it is seen that the decision of the Supreme Court in Collector of Central Excise vs. Raghuvar (India) Limited, arose out of the rules relating to MODVAT Credit. The Assessee, who was entitled to avail duty credit only from 10.03.1997, availed it even from 01.03.1997. Hence, a show cause notice under Section 11-A of the Act read with Rule 57-I of the Central Excise Rules, was issued. But it was issued beyond the period of six months. Therefore, CEGAT set aside the notice forcing the Department to seek a reference under Section 35-H of the Central Excise Act. The question that arose before the Supreme Court was whether the provisions of Section 11-A of the Central Excise Act were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the first respondent actually exported the goods. Their entitlement to refund is not at all in doubt. The factum of their having exported the goods is borne out by ARE-1 forms. After the advent of online filing of applications, it is very easy to check up whether the exports have taken place and whether duty had been paid or not. Therefore, in the absence of any prescription in the scheme, the rejection of the application for refund as time barred, is unjustified. Hence, the writ appeal is dismissed. There will be no order as to costs. 18. Against the aforesaid decision, the revenue has preferred an Appeal before the Hon'ble Supreme Court in Deputy Commissioner of Income Tax v. Dorcas Market Makers Pvt.Ltd., reported in [2015 (325) E.L.T.A104 (S.C.)] and the same was dismissed. The appellant would strongly rely upon the aforesaid decision wherein this Court relied upon the decision rendered in Collector v. Raghuvar [India] Ltd reported in 2000 (118) ELT 311 (SC). Hence, the notification issued therein did not prescribe any time limit. Hence, Section 11B of the Act cannot be made applicable. 19. Hence, the decision relied on by the respondent in Uttam Steels' case ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of commencement of the period 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. 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. 21. In the case of Commissioner of Central Excise, Coimbatore Versus GTN Engineering (I) Ltd., reported in 2012 (281) E.L.T.185 (Mad.), a Division Bench of this Court has held as follows:- A reading of the above rule, though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not grant Under Clause (a) of Sub-rule (1) either wholly or partially any rebate of duty paid on goods exported to a country outside India, it may, in order to promote exports or fulfil obligations arising out of any treaty entered into between India and the Government of that country, provide, by notification in the Official Gazette, for payment to the Government of that country an amount not exceeding the duty paid on such goods which are exported out of India to that country. (3) No rebate of duty in respect of excisable materials used in the manufacture of goods exported out of India Under Clause (b) of Sub-rule (1) shall be allowed, if the exporter avails of drawback of the said duty under the Customs and Central Excise Duties Drawback Rules, 1995 or avails of credit of said duty Under Section AA of Chapter V of the Central Excise Rules, 1944. Explanations--In this rule, the expressions,- (i) manufacture includes the process of blending of any goods or making alterations or any other operation thereon; (ii) materials includes raw materials, consumables (other than fuel) components, semi-finished goods, assemblies, sub-assemblies, intermediate goods, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .--In this rule, the term materials shall include raw materials, consumables (other than fuel), components, semi-finished goods, assemblies, sub-assemblies, intermediate goods, accessories, parts and packaging materials used in the manufacture of export goods but does not include capital goods used in the factory in or in relation to manufacture of export goods. Notifications and Procedures Under Rule 12 [I] Rebate of duty on export of all excisable goods except ship's stores and mineral oil products exported as stores for consumption on board an aircraft on foreign run. -- In exercise of the powers conferred by Clause (a) of Sub-rule (1) of Rule 12 of the Central Excise Rules, 1944, the Central Government hereby directs that rebate of duty paid on the excisable goods as specified in the Table annexed hereto, shall on their exportation out of India to any country except Nepal and Bhutan, be made to the extent specified in column (3) thereof: Provided that- (i) except as otherwise permitted by the Central Board of Excise and Customs by a general or a special order, the excisable goods shall be exported after payment of duty directly from a factory or a ware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the Fund: Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central excise under the foregoing provisions of this Sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; xxx xxx xxx Explanation.-For the purposes of this section,- (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. 13. Shri Bagaria's argument based on the proviso to Rule 12(1) would obviously not have any force if Section 11B were to apply of its own force. It is clear from Section 11B(2) proviso (a) that a rebate of duty of excise on excisable goods exported out of India would be covered by the said provision. A reading of Mafatlal Industries (supra) would also show that such claims for rebate can only be made Under Section 11B within the period of limitation stated therefor. This being the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2002, Cenvat Credit Rules, 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Exicse, as the case may be. For the purpose of dining out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out as to the relevant date. Rule 5 specifies that where any input or input service is used in the manufactures of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed. 29. In Delphi-TVS Diesel Systems Ltd., Versus CESTAT, Chennai, reported in 2015 (324) E.L.T.270 (Mad.), it has been held as follows:- 5. The claim for refund made by the appellant was in terms of Section 11B. Under sub-section (1) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the question, it has to be taken note of that if a substantial provision of the statutory enactment contains both the period of limitation as well as the date of commencement of the period 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. 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. 30. Therefore, the second contention raised by the appellant in the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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