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TMI Blog2017 (12) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 13-11-2017 - Shri C J Mathew, Member (Technical) Shri Prasad Paranjape, Advocate for the appellant Shri S V Nair, Assistant Commissioner (AR) for the respondent ORDER A perusal of the records pertaining to this dispute throws light on many aspects of these proceedings thus far that have not agitated either side despite their relevance. An incomplete proceedings poses consequences that manifestly displays patent lack of comprehension of statutory provisions that are sought to be implemented. Therefore, prior to scrutiny of facts pertaining to this dispute, it may be worthwhile to recall the scheme of exemption that that is at the root. 2. In order that public conveyance such as taxis are not burdened by duties i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed with recovery under section 11A of Central Excise Act, 1944 with attendant penal consequences. It is moot whether that consummation has occurred in this dispute. In consequence, the issue for determination is the detriment that the appellant has been visited with owing to rejection of the claim for refund. 5. The appellant, M/s Mercedes Benz Ltd, who had cleared the car to their dealer, M/s T T, on 30th March 2010 but filed refund claim of ` 5,75,750/- only on 3rd December 2010. The dealer had not, admittedly, sold it to the taxi operator, M/s Maan Tourist Transport Services Pvt Ltd, till 23rd July 2010 and was sent for registration only on 24th July 2010. Both the deadlines stipulated in the notification had not been complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Derivatives Ltd v. Commissioner of Central Excise, Ahmedabad [2010 (17) STR 582 (Tri-Ahmd)]. 8. In re Mihir Textiles Ltd, the Hon ble Supreme Court was called upon to decide if an exemption notification that was not sought at the time of import could be allowed subsequently through a claim for refund when eligibility could be claimed; in rejecting that option, the conditions prescribing eligibility were referred. Here the issue is the primacy of limitation prescribed in a procedural notification over the statutory prescription. Undoubtedly, it was that very issue which came up before the Tribunal in re Amee Castor and Derivatives Ltd as well as in r e Kalyani Hayes Lemmerz Ltd. Nevertheless, the refund that was rejected in both thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are authority on the question that in matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases. The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail. cannot be ignored. 10. More so, when legislative intent is delved into. The higher rate of duty are leviable on motor vehicles which when put to private use would, in the language of contemporary discourse, be termed as demerit goods justifying the extra burden both for garnering revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iaries of the exemption. It would appear that the general law which prescribes a reasonable time-frame for grant of refund should govern the suo motu provisional availment of refund by assessee. The exemption has been vogue for long and must have been so crafted as to be in consonance with the general law relating to refunds i.e. section 11B of Central Excise Act, 1944 which for long limited claims to six months from date of payment of duty and, later, from relevant date. With effect from 12th May 2000, this bar of limitation was extended to one year. That the time limit for suo motu self-crediting of refund amount should also have kept pace does appear to be a reasonable construction. That it was by oversight or disinclination to subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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