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TMI Blog2019 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 was considered by the Hon'ble High Court of Madras in the case of Dorcas Market Makers Pvt. Ltd., [ 2015 (4) TMI 118 - MADRAS HIGH COURT ], it was held that the rebate of duty under Rule 18 should be as per the Notification issued by the Central Government. Notification No.19/2004 did not contain the prescription regarding limitation, a conscious decision taken by the Central Government. The reference made by the learned counsel for the petitioners to the circular instructions issued by the Central Board of Excise and Customs, New Delhi, is of little assistance to the petitioners since there is no estoppel against a statute. It is well settled principle that the claim for rebate can be made only under section 11-B and it is not open to the subordinate legislation to dispense with the requirements of Section 11-B. Hence, the notification dated 01.03.2016 bringing amendment to the Notification No.19/2004 inasmuch as the applicability of Section 11-B is only clarificatory - It is not in dispute that the claims for rebate in the present cases were made beyond the period of one year prescribed under Section 11-B of the Act. Any Notification issued under Rule 18 has to be in confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Madras High Court which have been decided in favour of the assessee holding that the rebate of duty under Rule 18 should be as per the Notification issued by the Central Government which prescribes the conditions, limitations and procedures for considering the claim for refund. The limitation prescribed under Sub-section(1) of 11-B of the Act has not been made applicable under the Notification No.19 of 2004 during the relevant period. The entitlement to refund not being in doubt, in the absence of any time prescription in the scheme, the rejection of the application for refund as time barred, is unjust. It is submitted that similar view has been taken by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur and Hon'ble High Court of Punjab and Haryana at Chandigarh. Reliance is placed on the following decisions: 1. Deputy Commissioner of Central Excise V/s. Dorcas Market Makers Pvt. Ltd., reported in [2015][321] ELT. 45. 2. JSL Lifestyle Limited Vs. Union of India, reported in 2015(326) ELT 265 (P H). 3. Collector of Central Excise V/s. Raghuvar [India] Ltd., reported in 2000 [118] ELT 311 [SC] 4. The Commissioner of Central Excise and Service Tax Large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. In view of the recent judgment of the Hon'ble Apex Court in Uttam Steels supra, the decision of Dorcas Market Makers Pvt. Ltd., supra as well as the other judgments referred to by the learned counsel for the petitioners would not come to the aid of the petitioner. The Division Bench of the Hon'ble Madras High Court has considered the same in its later decision of M/s. Hyundai Motors India Ltd., supra and following the recent judgment of M/s. Uttam Steels Ltd., supra has answered the issue in favour of the Revenue. 10. In the case of Uttam Steels, supra, the Hon'ble Apex Court has observed thus: 11. The effect of the amendment of Section 11-B on 12-5-2000 is that all claims for rebate pending on this date would be governed by a period of one year from the date of shipment and not six months. This, however, is subject to the rider that the claim for rebate should not be made beyond the original period of six months. On the facts of the present case, respondents cannot avail of the extended period of one year on the subsequent amendment to Section 11-B. 12. The effect of Section 11-B, and in particular, applications for rebate being made within time, has been laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasis in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil court. (emphasis in origional) From the law laid down by this decision it is clear that all claims for rebate/refund have to be made only under Section 11-B with one exception - where a statue is struck down as unconstitutional. Further, the limitation period of six months has to be strictly applied. 13. xxxx 14. 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 excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. In Hyundai Motors India Limited, supra the judgment of Raghuvar [India] Limited is also considered and distinguished. 13. The reference made by the learned counsel for the petitioners to the circular instructions issued by the Central Board of Excise and Customs, New Delhi, is of little assistance to the petitioners since there is no estoppel against a statute. It is well settled principle that the claim for rebate can be made only under section 11-B and it is not open to the subordinate legislation to dispense with the requirements of Section 11-B. Hence, the notification dated 01.03.2016 bringing amendment to the Notification No.19/2004 inasmuch as the applicability of Section 11-B is only clarificatory. 14. It is not in dispute that the claims for rebate in the present cases were made beyond the period of one year prescribed under Section 11-B of the Act. Any Notification issued under Rule 18 has to be in conformity with section 11-B of the Act. 15. The decision of Original Authority rejecting the claim of rebate made by the petitioners as time barred applying Section 11-B of the Act to the Notification No.19 of 2004 cannot be faulted with. For the reasons aforesaid, no exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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