9911796707
TMI Blog2022 (12) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ar commences from the Relevant Date. The relevant date as defined in Explanation (B) to this provision, states that for the purposes of goods exported by sea, is the date on which ship in which goods are loaded, leaves India. Thereafter the relevant date for other contingencies has been enumerated and Clause (f), the residuary clause states that in any other case, the relevant date will be the date of payment of duty. The Petitioner has admittedly paid excise duty after the alleged modification. The Petitioner has made specific assertion based on factual position in this petition. If a contingency arose which made it impossible to the Petitioner to fall within a particular classification regarding the period of limitation and the same pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11B of the Act of 1944 and partly rejected the same. It is against the rejection, the Petitioner is before us. 2. The Petitioner is engaged in manufacturing of flexible packaging material (laminates) falling under Chapter Heading 39 of the First Schedule to Central Excise Tariff Act, 1985. The Petitioner was desirous to appoint a distributor for distribution and selling the products in Africa. The Petitioner entered into a distribution agreement on 1 August 2006 with one Acumen Enterprises. Certain terms and conditions were agreed upon. Pursuant to the agreement, the Petitioner exported the goods, and filed rebate claims in terms of Rule 18 of the Central Excise Rules, 2002 within a period of one year from the date of shipment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the impugned order dated 20 October 2011. 5. Since the Petitioner s claim has been rejected on the ground that it is barred by limitation, the statutory provision governing the period of limitation would be the subject matter of discussion. Section 11B(1) of the Central Excise Act states that any person claiming refund of any duty of excise and interest may make an application for refund before expiry of one year from the relevant date. The period of limitation of one year commences from the Relevant Date. The relevant date as defined in Explanation (B) to this provision, states that for the purposes of goods exported by sea, is the date on which ship in which goods are loaded, leaves India. Thereafter the relevant date for other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner, in view of subsequent modification in the agreement, a contingency which the Petitioner did not anticipate when the goods left India on the abovementioned date, it was impossible for the Petitioner to claim rebate in respect of the excise duty paid pursuant to the modification within one year of the goods leaving India, and, therefore, the Petitioner's case would fall under Clause-(f) of Explanation (B). The learned counsel for the Petitioner submitted that the fact that the Petitioner has paid excise duty after modification of the agreement is accepted and not in dispute and since it was not possible for the Petitioner to foresee the changes in the agreement, the Petitioner could not have possibly asked for rebate within o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its agreement. The Schedule-1 appended to the agreement reads thus: (a) within 30 days from April 1 of every Financial Year commencing after March 31, 2007, the Supplier shall provide to the Distributor, an estimate (based on the forecasted Orders provided by Distributor) indicative RMC + manufacturing overheads + administrative overheads + fright expenses estimated to be incurred by and in connection with the manufacture of the Packages during the Financial Year. b) Supplier shall endeavour to make the above estimate as accurate as possible based on accounts of the immediately preceding financial year and shall exclude from above calculation any item of extra ordinary nature. c) The statement in following format shall be fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orated in the appeal memo, but in the appeal memo though the Petitioner has given details pursuant to the assertion regarding modification, this aspect is not supported by any documents. The Learned counsel for the Petitioner, at this stage, states that a liberty be given to the Petitioner to produce all these documents to demonstrate that on facts it was not possible for the Petitioner to make supplementary claims within a period of one year from the date of shipment and, therefore, Petitioner's case was under Clause (f). 9. As on today, the Petitioner s claims for rebate have been rejected. The Petitioner has admittedly paid excise duty after the alleged modification. The Petitioner has made specific assertion based on factual posi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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