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TMI Blog2021 (4) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... to as "the goods") The petitioner manufactured the said goods from the factory located at village: Jolwa; Taluka Palsana, District: Surat and cleared the same with payment of Central Excise Duty. The petitioner cleared the said goods under the prescribed FORM ARE-1 along with all requisite documents and filed the shipping bills bearing No.8696246 dated 27.07.2010 by declaring the value of the said goods of Rs. 81,09,800/- from the port of Nav Sheva, JNPT at Raigadh. 2.2. The rebate of central excise duty paid on excisable goods is provided under Rule 18 of the Central Excise Rules, 2002. The Central Government, by notification, grants rebate paid on excisable goods, if any goods are exported, the same shall be subject to such conditions or limitations and fulfilment of set procedure, as may be specified in the notification. 2.3. Notification No.19/2004/CE(NT) dated 06.09.2004 has been issued in exercise of powers conferred under Rule 18 and has been amended from time to time, prescribing conditions, limitations and procedures for grant of rebate of central excise duty paid on excisable goods. 2.4. This notification was again amended by Notification No.18/2016/CE(NT) dated 1.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is not entertainable. 2.10. Paragraphs No.2.4 of paragraph No.2 of Chapter IX of CBEC Manual 2010-11 provides that in case of non-availability of any document, due to any reason, for which the Central Excise and Customs Department would solely be accountable, the refund claim should be admitted, as the claimant cannot be in a disadvantageous position on account of limitation period, if the fault was not his. It is further the say of the respondent that there is no power conferred upon the Central Excise Officer to condone the delay. Aggrieved petitioner challenged it before the Commissioner (Appeals), where again emphasis was that there was no delay on the part of the petitioner to file a rebate claim, but due to non-availability of export promotion copy of shipping bill /shipment certificate issued by the Customs Department, the petitioner was not in a position to file the rebate claim. The rebate claim has been preferred on 11.10.2011 after the receipt of copy of shipment certificate on 20.08.2011. It has relied on the decision of Cosmonaut Chemicals vs. Union of India, 2009 (233) ELT 46. 2.11. The Commissioner (Appeals), vide its order dated 29.03.2012 No.US/199 to 201/R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case." 3. This Court has heard learned advocate Mr. Hardik Modh for the petitioner, who has urged that one of the two documents, which would be essential before the person who exported the goods to claim rebate from the respondent authority, are (1) the Export Promotion Copy or (2) the Shipment certificate. In the instant case, the event of export of the goods occurred on 02.08.2010 vide shipping bill no.8696246(dated 27.07.2010). He applied for the shipment certificate in less than a month. The Revenue issued the said certificate on 20.08.2011 and the rebate claim was filed by the petitioner on 11.10.2011. He has taken us through the Central Excise Manual of CBEC for shipment instructions and, more particularly, Chapter VII and paragraph No.13.2. According to him, paragraph no.13.2 makes it essential to have the shipment certificate or the proof of export promotion copy. Without either of the documents, it was not feasible to even file the rebate claim with short supply of four bags. There does not appear to be feasibility of getting export promotion copy. Therefore, the only course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of the Central Excise Rules, 2002 is providing the grant of rebate of duty paid on excisable goods, subject to certain conditions or limitations and fulfillment of proceduralities. Rule under the head of "rebate of duty" deserves reproduction at this stage: "Rule 18. Rebate of duty.- 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." Explanation.-"Export" includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft." 9. In exercise of powers conferred under Rule 18 of Central Excise Rules, 2002, the Central Government has issued notification No.19/2004- CE(N.T) dated 16.09.2004, which provides the procedure for presentation of claim for rebate to Central Excise. Worthwhile it would be to reproduce the same: "3(b) Presentation of claim for rebate to Central Excise:- (i) Claim of the rebate of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, the Maritime Commissioner;" 11. Thus, the Central Government has specifically provided by way of the amendment in the year 2016 from 01.03.2016 that the claim of rebate of duty paid on all excisable goods shall be lodged before the expiry of the period specified under section 11B of the Central Excise Act and the same shall be done along with the original copy of application to the Assistant Commissioner, Central Excise, having jurisdiction over the factory of manufacture or warehouse or before the Maritime Commissioner as the case may be. 11.1. It is also to be noted that for filing the rebate claim, there are certain documents, which are a must and one of them is the Shipping Bill (Export Promotion copy) duly endorsed by the Customs Department, as provided in Paragraph No.13.02 and Chapter VII read with Paragraph No.8.3. Chapter VIII of CBEC, Central Excise Manual. It is not in dispute that there was a short shipment to the extent of four bags so far as Shipping Bill No.8696246 dated 27.07.2010 is concerned. Admittedly, there were only 160 bags comprising of 160,480 kgs of goods instead of 164 bags, which were needed for the purpose of export promotion copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the claim and the bank realization certificate is also not adduced. Hence, written reply was directed to be sent in 10 days' time from the date of receipt of this deficiency-cum-show cause notice call for personal hearing. The personal hearing was scheduled on 3rd, 4th & 5th January, 2012 before the office of the Maritime Commissioner. 14.1. In answer to the same, on 29.12.2011, the petitioner made a mention of short shipment of four bags and reiterated that the Customs Department could not generate the export promotion copy. However, the release of Shipment Certificate was on 20.08.2011 to the CHA. Therefore, the request was made to condone the delay on the ground that shipment was done within six months from the date of clearance of goods from the factory. The export promotion copy could not be submitted, as the same was not generated by the Customs Department. It also said that later on, on 30.07.2010, four bags had been shipped. Copies of shipment certificate for shipping bill No.8696246 dated 27.07.2010 and Shipping Bill No.8712231 dated 30.07.2010 have been enclosed. It also gave details of assessed value and FOB value to urge that total difference is only of Rs. 64,40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Pvt. Ltd. reported in 2011 (267) ELT 586 is referred to, where the Court has stated that even if the relevant documents are not available with the petitioner company, it could have filed the application without relevant documents, which the department was bound to receive so that the refund is not hit by limitation period. As the rebate claim is not filed within the period of one year along with available documents, which were already in his possession, relying on also the the decision of CESTAT in the case of Precision Controls vs. CCE Chennai, 2004(176) ELT 147(Tri-Chennai), it held that there is no discretion or equitable jurisdiction to allow rebate claim dehors the limitation as per the provisions of section 11B, accordingly, it has been rejected. 17. Office of the Commissioner of Central Excise, Mumbai also confirmed the same. It referred to the Supreme Court decision in the case of Union of India vs. Jalyan Udyog, 1993(68) ELT 9 (SC), which says that the exemption granted may be an absolute and/or subject to such conditions, as may be specified in the notification and further that the condition specified may relate to a stage before clearance of goods or to a stage subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund or rebate claim. The principle of undue enrichment and method of payment of rebate of duty are also prescribed under section 11B only. It further held that Rule 18 is a piece of subordinate legislation made by the Central Government in exercise of powers given under the Central Excise Act. It further prescribes conditions and limitations for granting rebate of duty by issuing notification which by all means a subordinate legislation. The basic feature and condition already stipulated in section 11B in relation to the rebate of duty need not be repeated in the said rule and the areas, over and above already covered in section 11B have been left to the Central Government for regularization from time to time. Therefore, there shall need to be a combined reading of both, section 11B and Rule 18 and it cannot be contemplated that Rule 18 is independent of section 11B, as there is an express provision of one year under section 11B and as per this provision, the refund includes the rebate of duty. The condition of filing the rebate claim within one year is squarely applicable to the rebate of duty. When dealt with by Assistant Commissioner or the Deputy Commissioner for revision und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers visited the premises and during the course of investigation, the petitioner deposited 15 lakhs. This difference in duty was on deposit and not on duty confirmed during the investigation. Thereafter, the show cause notice was issued for the recovery of the Central Excise duty with demand of interest and imposition of penalty. The Superintendent Central Excise and Customs (Range-III) directed the petitioner to pay further pre-deposit amount of Rs. 3,32,076/-, the same had been deposited and, accordingly, the total amount deposited was Rs. 18.32 lakhs (rounded off). 20.1. After the show cause notice was issued, the matter was adjudicated by the Commissioner, Central Excise (Customs) and the order thereafter was carried in appeal before the CESTAT, which allowed the appeal. 20.2. The department challenged the order before the Apex Court, which when was not entertained, it filed the review application, which was also dismissed. 21. After receipt of the order of the Apex Court, the Revisional Central Excise Authority was addressed a letter by the petitioner for claim of refund of Rs. 18,32,676/- on the ground of this being predeposit/deposit made by the petitioner during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as deposits needed to be rejected. The payments have been made in the nature of Central Excise duty. They were not considered akin to or in the nature of pre-deposit, as contemplated under section 35F of the Act, nor was there anything to indicate that the payment was made under protest and hence, the submission that second proviso of sub-section(1) of section 11B of the Act, which provides that limitation of one year was not applied, where duty and interest, if any, paid on such duty has been made under protest, the Court further held that the payments made by the petitioner were in the nature of excise duty and were not deposits. Therefore, the provision of section 11B of the Act would be attracted. The amount, in question, since had not been deposited under protest, according to the Court, the petitioner would not be liable to file the claim beyond the period of limitation. Thus, since the refund claim had not been filed within the prescribed period of limitation, the Court held that the Tribunal was justified in rejecting the claim. This was challenged before the Apex Court and the Court, after condoning the delay, did not interfere with the order of the High Court in Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en they are exported by the exporter in accordance with the procedure set out in Chapter IX of the Central Excise Rules, 1944, (3) they are to be exported within six months from the date on which they were cleared for export from the factory of manufacturer or warehouse or within such extended period, as the Collector of Central Excise may, in a particular case, allow; (4) the claim or the supplementary claim for rebate of duty is lodged with maritime Collector of Central Excise or Collector of Central Excise having jurisdiction of either the factory of manufacture or warehouse, as mentioned in the relevant export documents together with the proof of duty of exportation within the time limit specified in sub-section 11B of the Central Excise Act and (5) Market price of the excisable goods, at the time of exportation, in the opinion of the Collector of Central Excise, be not less than the amount of rebate of duty claimed. The rebate of duty is not admissible, if it is less than Rs. 500/-. The exporter also is to undertake refund of rebate of duty erroneously paid to the Collector of Central Excise sanctioning such rebate in accordance with the provisions of section 11A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim in proper format along with all relevant documents supporting his claim and also the copies of documents supporting his declaration that he has not passed on duty in incidence. 30. Paragraph No.2.4 provides clearly and particularly that it may not be possible to scrutinize the claim without accompanying documents and decide about its admissibility. If the claim is filed without requisite document, it may lead to delay in sanctioning of the refund. Moreover, the claimant of refund becomes entitled for interest in case refund is not given within three months of the filing of the claim. Therefore, the submission of refund claim without supporting documents will not be allowed, even if the claim is filed by post or some similar mode. The claim should be rejected or returned with query memo depending on the nature and importance of document not filed and the claim shall be taken as admissible only when all relevant documents are available. In case, any document is not available, for which the Central Excise of Customs Department is solely accountable, the claim may be received so that the claimant is not hit by limitation period. Under the Heading of "Scrutiny of Refund and Claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not affect adversely the party. Thus, self-attested copy of the shipping bill was unavailable, as there was a shortshipment to the extent of four begs in relation to the Shipping Bill No.8696246 dated 27.07.2010 and, therefore, the Customs authorities on a request had issued a shipment certificate on 20.08.2011. 35. Rule 18 speaks of rebate of duties for any goods exported by Notification of the Central Government for the duty paid on excisable goods or duty paid on material used in the manufacture for processing of such goods, subject to such conditions and limitations and fulfilment of such procedure, as may be specified in the notification. If one looks at Notification No.19 of 2004 and amended from time to time, the same prescribed conditions, limitations and procedures for rebate on duty paid on excisable goods. 36. As the Notification No.18 of 2016 CE(NT) was amended by Notification No.19 of 2004 from 01.03.2016, the decisions of the Madras High Court and Punjab & Haryana High Court relying on the decision of the Apex Court in the case of Collector of Central Excise, Jaipur vs. Raghuvar (India) Limited, 2000 (118) ELT 311(SC) shall need to be regarded where the issue was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 11B of the Act vide clause (a) of the Proviso rebate of duty of excise on excisable goods exported out of India or inputs which have borne duty of excise having been used in manufacture of goods which are exported out of India the assessee becomes entitled, provided the application is in accordance with the prescription, viz. in form and manner and is accompanied by relevant documents. 10. In this context one has to keep in mind as to why the provision prescribes attachment of documents to such rebate claim. The object of the said requirement, simply stated, is nothing else but cross verification of the fact that :(1) the goods are exported outside India, and (2) such goods are duty paid goods. That is why the requirement of the Rules to obtain endorsement from the Customs officials on the shipping bills under which the goods have been exported. 11. The Central Board of Excise and Customs, in exercise of its delegated legislation, has framed the Manual of Supplementary Instructions. In Chapter 1 Part 1 of the said CBEC Manual the scope of the Manual has been explained. Paragraph No.1.1 indicates that the instructions are supplemental to, and must be read in conjunct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, based on interpretation of the very sentence, is that the said sentence stipulates an exception to the effect that where, in a case, the claim is not accompanied by documents, and such deficiency is on account of non supply of the requisite documents by the Officers of the Department a deficient claim has to be made within the period of limitation prescribed and such a claim shall be considered as and when the deficiency is removed by supplying relevant documents at a subsequent point of time. 14. When one reads entire sub-paragraph No.2.4 as a whole it is not possible to accept the stand adopted by the respondent authority. The text of the said sub-paragraph and the language employed therein would indicate that an assessee cannot claim refund/rebate when the application is incomplete in any manner whatsoever. In fact the submission of a claim without supporting documents will not be allowed, that is the mandate to the officer who is entitled to receive and scrutinise such a claim. It is further provided that in a case where an assessee files the claim by sending the same through post or by adopting a similar mode viz. a mode other than personal presentation, the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of the department. In fact, as noticed hereinbefore, submission of refund claim without supporting documents is prohibited. 17. There is one more aspect of the matter. Chapter 8 of the CBEC Manual is EXPORT UNDER CLAIM FOR REBATE. Paragraph No.8 of the said Chapter pertains to Sanction of claim for rebate by Central Excise. Sub-paragraph No.8.4 reads as under : "S8.4. After satisfying himself that the goods cleared for export under the relevant A.R.E.1 applications mentioned in the claim were actually exported, as evident by the original and duplicate copies of A.R.E.1 duly certified by Customs, and that the goods are of 'dutypaid' character as certified on the triplicate copy of A.R.E.1 received from the jurisdictional Superintendent of Central Excise (Range Office), the rebate sanctioning authority will sanction the rebate, in part or full. In case of any reduction or rejection of the claim, an opportunity shall be provided to the exporter to explain the case and a reasoned order shall be issued". 17.1 As noted hereinbefore, the claim for rebate is in relation to excise duty paid on the goods which are exported outside India. When one reads the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading the provision of 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." 38. In the instant case, in view of the well settled position of law that the procedural requirement cannot defeat the substantial right of the party ,as in absence of shipping bill, insistence on the shipment ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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