Customs, Excise and Gold Tribunal - Tamil Nadu
Precision Controls vs Commissioner Of Central Excise on 6 July, 2004
Equivalent citations: 2005(98)ECC289, 2004(176)ELT147(TRI-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. This appeal of the assessee is against an order of the Commissioner of Central Excise rejecting as time-barred their claim for rebate of Central Excise duty in respect of goods exported out of India during December 1999 - August 2001. The rebate claim was filed on 29.1.2003 and the same was in respect of the amounts of duty mentioned below relating to five consignments of goods exported on the respective dates mentioned below:-
_________________________________________________________________ Sl. No. Date of export Amount of duty (Rs.) _________________________________________________________________
1. 10.12.1999 3,46,000
2. 18.7.2000 41,695
3. 5.9.2000 41,400
4. 4.12.2000 1,62,658
5. 26.8.2001 17,625 _________________________________________________________________ The claim for rebate of the amounts of duty mentioned at SI. Nos. 1 to 4 above was under Rule 12 of the Central Excise Rules, 1944 and the rebate claim at SI. No. 5 was under Rule 18 of the Central Excise (No. 2) Rules, 2001 Section 11B of the Central Excise Act treated rebate claims on part with refund claims and prescribed a period of limitation for both. This period of limitation, prior to the amendment of Section 11B effective from 12.5.2000, was six months. The amendment enhanced the period of limitation from six months to twelve months. This period of limitation has continued to be in force even after Rule 12 was replaced by Rule 18. Rules 12 and 18 authorised the Central Government to grant, by Notification in the Official Gazette, rebate of duty paid on excisable goods, if such goods were exported out of India subject to such safeguards, conditions and limitations (as regards the class or description of goods, destination, mode of transport and other allied matters) as might be specified in the Notification. The relevant Notifications issued by the Central Government under Rule 12 and Rule 18 providing for grant of rebate of excise duty were Notification No. 41/94-CE (NT) dated 12.9.94 and Notification No. 40/2001-CE (NT) dated 26.6.2001. These Notifications laid down the conditions subject to which any claim for rebate of duty could be made. Thus, for a rebate claim in terms of clause (a) sub-rule (1) of Rule 12, nine conditions were laid down by Notification No. 41 /94. Condition No. (iv), among these conditions is relevant for the present purpose and the same reads as under:
"iv. The claim or, as the case may be, supplementary claim, for rebate of duty is lodged with the Maritime Collector of Central Excise or the Collector of Central Excise having jurisdiction over the factory of manufacture or warehouse, as mentioned in the relevant export documents; together with the proof of due exportation within the time limit specified in Section 11B of the Central Excises and Salt Act, 1944(1 of 1944)."
Section 11B of the Central Excise Act expressly provides that any amount of duty of excise determined by the Assistant Commissioner/Deputy Commissioner of Central Excise for refund to a claimant shall be paid to him, instead of being credited to the Consumer Welfare Fund, if such amount is relatable to rebate of duty of excise on excisable goods which the latter has exported out of India. The period of limitation for such refund is reckoned from the "relevant date" which, insofar as a claim for rebate of duty on goods exported out of India is concerned, is the date of export, i.e. the date of shipment.
2. In the instant case, the refund claim relating to rebate of duty on the goods covered by the five shipments was filed on 29.1.2003, far beyond the dates of export of the goods. It is on this ground that the Commissioner of Central Excise rejected the assessee's claim.
3. The main ground raised in this appeal is that, in the absence of any time limit prescribed under Rule 18, the limitation prescribed under Section 11B of the Central Excise Act is irrelevant. The appellants have, in this connection, relied on the ratio of the Supreme Court's judgment in CCE v. Raghuvar (India) Ltd., 2000 (70) ECC 1 (SC) : 2000 (118) ELT 311 (SC), wherein it was held that, where the relevant Rule did not provide any time limit, the provisions of Section 11A would not be applicable.
4. Ld. Counsel for the appellants, however, has not ruled out the applicability of Section 11B to this case. He only submitted that the time limit provisions of Section 11B were not substantive law and a refund claim filed beyond the time limit prescribed under that Section was not to be rejected on the procedural ground of time-bar. In this connection, reliance was placed on the Bombay High Court's Judgment in Uttam Steel Ltd. v. Union of India, 2003 (158) ELT 274 (Bom). Ld. Counsel also relied on the proviso to Rule 12 (1) and submitted that the Commissioner could allow a claim for rebate, if he was satisfied that the goods had actually been exported, even if all or any of the conditions laid down in Notification No. 41 /94-CE (NT) had not been complied with. In this context, the Counsel referred to condition No. (iv) and argued that the requirement of filing rebate claim within the time limit specified in Section 11B of the Central Excise Act was a 'condition laid down in the Notification' and therefore, where such condition had not been complied with by the claimant, the Commissioner could exercise his authority under Rule 12 and allow the rebate claim, if he was satisfied that the goods had, in fact, been exported. In the instant case, the Commissioner failed to do so. These arguments of Ld. Counsel were opposed by the DR on the strength of the following case law:
(i) CCE v. Doaba Co-Operative Sugar Mills, 1988 (18) ECC 157 (SC): 1988 (37) ELT 478 (SC)
(ii) Miles India Ltd. v. ACC, 1987 (30) ELT 641 (SC)
(iii) Rasoi Ltd. v. CCE, 1993 (63) ELT 521 (T) Ld. DR, relying on the above case law, argued that the Commissioner had no power to relax the statutory time limit prescribed under Section 11B. Hence, the belated claims were rightly rejected by the adjudicating authority. It was also pointed out that the Department had filed a Special Leave Petition in the Supreme Court against the High Court's judgment in Uttam Steel (supra)
5. We have given our careful consideration to the submissions. That the rebate claims were filed beyond the period of limitation prescribed under Section 11B of the Central Excise Act is not in dispute. Ld. Counsel has heavily relied on the Bombay High Court's judgment in Uttam Steel (supra). Much emphasis has been laid on para 31 of the High Court's judgment which reads as under:
"31. From the aforesaid provisions, it is clear that for availing the rebate of duty, the primary requirement is the export of excisable goods. Rule 12 specifically provides that once it is established that the goods have been actually exported then even if some or all of the requirements set out in the notification issued under Rule 12 are not fulfilled, the exporter will be entitled to rebate of duty. Under Rule 12, the claim for rebate of excise duty accrues as soon as the excise duty paid goods are exported. Section 11B of the Act provides limitation within which the claim for rebate of duty is required to be made. Neither Rule 12 nor Section 11B contemplates that if the application for rebate of duty is not made within the period of limitation, the accrued right to rebate of duty lapses. Therefore, if the application for rebate of duty is not made within the period of limitation prescribed under Section 11B, only the remedy is barred and not substantive right to claim rebate of duty accrued under Rule 12. In other works, the limitation prescribed under Section 11B only deals with the procedural law and not the substantive law."
Relying on the above ruling, Ld. Counsel has argued to the effect that the substantive right to claim rebate of duty under Rule 12 cannot be defeated on the procedural ground of limitation prescribed under Section 11B. We are afraid, this argument stems from a misunderstanding of the High Court's ruling. We note that, in the above judgment, the Hon'ble High Court has held that if an application for rebate of duty is not made within the period of limitation prescribed under Section 11B, the remedy is barred. According to our understanding, when the remedy under Section 1113 is barred, it is not open to the Commissioner of Central Excise to entertain a claim for rebate of duty filed beyond the period of limitation prescribed under the said Section. In other words, the Commissioner has no power to condone any delay involved in the filing of such a claim. We don't think that the Hon'ble High Court's decision is so supportive of the appellants' case as claimed by their Counsel. Even if it be assumed that the High Court's judgment contains anything that could support the appellants' case, yet it should give way to the Hon'ble Supreme Court's rulings cited by the DR. In Miles India (supra), it was held by the Apex Court, on the facts of that case, that the Customs authorities acting under the Customs Act were justified in disallowing the refund claim as time-barred as they were bound by the period of limitation provided under Section 27(1) of the Act. Their Lordships further observed that, if really the payment of duty was under a mistake of law, the appellants were at liberty to take recourse to alternative remedy. In the case of Doaba Co-operative Sugar Mills (supra) also, it was held by the Supreme Court that authorities functioning under an Act were bound by its provisions and that, if proceedings were taken under the Central Excise Act by the department, the provisions of limitation prescribed under the Act would prevail. Here, again, their Lordships observed that it was open to the department to initiate proceedings in the Civil Court for recovery of the amount due from the assessee. We note that this Tribunal followed the above rulings of the Apex Court and held, in the case of Rasoi Limited (supra), that the departmental authorities had no power to relax the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 for a claim for rebate of duty. In the said case, certain High Court judgments allowing rebate claims filed beyond the statutory time limit were distinguished by this Tribunal noting that such reliefs were given by the High Courts in their writ jurisdiction. Contextually, we note that, in the case of Uttnm Steel Ltd. (supra) also, the Hon'ble Bombay High Court allowed a belated rebate claim in a Writ Petition filed by the assessee. This Tribunal, acting under the provisions of the Central Excise Act, has no equitable or discretionary jurisdiction to allow any such claim de hors the limitation provisions of Section 11B. We have to follow the rulings of the Apex Court. It has been held by their Lordships that authorities working under the Central Excise Act and the Customs Act have no power to relax the period of limitation prescribed under Section 11B and Section 27 respectively of the two Acts. The lower authority, by rejecting the belated rebate claims of the appellants, has only acted in accordance with the law laid down by the Apex Court. This Tribunal is also one of the authorities acting under the aforesaid Acts and our powers vis-a-vis belated rebate claims are equally circumscribed. We, therefore, are unable to condone the delay of the rebate claims filed by the appellants.
6. In the result, the order of the Commissioner is affirmed and this appeal is rejected.