Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.07.2021 passed by the High Court of Karnataka at Bengaluru in Writ Appeal No 249/2020, whereby the Division Bench of the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the common judgment and order dated 22.11.2019 passed by the learned Single Judge dismissing the writ petitions, upholding the order passed by the respondent rejecting the claim of the appellant for rebate on the ground that the claim was barred by time/limitation prescribed under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as the ‘Act’), the original writ petitioner/appellant herein has preferred the present appeal. 1
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The original authority rejected the above-mentioned rebate claims as barred by time prescribed under Section 11B of the Act vide three different Orders-in-Original. The learned Single Judge vide common order dated 22.11.2019 dismissed the said writ petitions holding that the claims for rebate were made beyond the period of one year prescribed under Section 11B of the Act. Therefore, a conscious decision was taken that for the period between 2000 to 2016, the period prescribed under Section 11B of the Act shall not be applicable; v) that in absence of specific provision either in Rule 18 or in notification dated 6.9.2004 which came to be issued in exercise of powers under Section 37 of the Act specifically making Section 11B of the Act applicable which provides for the limitation to make an application within six months/one year applicable, subject to fulfilling of all conditions mentioned in the notification dated 6.9.2004, the exporter shall be entitled to the rebate of duty paid on excisable goods exported; vi) that as per notification dated 6.9.2004 on fulfilling of such procedure and the conditions as specified in the notification, there shall be granted rebate of the whole of the duty paid on the excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 exported to any country other than Nepal and Bhutan. As subsequently the period of six months was increased to one year, it appears that thereafter vide notification dated 1.3.2016, again the applicability of Section 11B of the Act was introduced; vii) that there is a vast difference and distinction between the refund of duty and the rebate claim; and viii) that as Rule 18 is a special provision for the grant of rebate of duty, general provision of Section 11B of the Act which is for refund of duty shall not be applicable.
Shri Datar, learned Senior Advocate has also relied upon the following decisions of the High Courts of Madras, Allahabad, Punjab & Haryana and Rajasthan taking the view, after following the decision of this Court in the case of Raghuvar (India) Limited (supra), that the claim for rebate of duty under Rule 18 of the 2002 Rules is different and distinct than the claim for refund under Section 11B of the Act and therefore the limitation prescribed under Section 11B of the Act shall not be applicable with respect to claim for rebate of duty paid: 1. Union of India, 2015 SCC OnLine P&H 13023 : 2015 (326) ELT 265 (P&H) (paragraphs 14,15,16 & 17); and 4.
Datar, Learned Senior Advocate appearing on behalf of the appellant has further submitted that the decision of this Court in the case of Union of India v. It is submitted that it is observed and held by the Gujarat High Court in the aforesaid decision that any procedure prescribed by a subordinate legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. 1 It is vehemently submitted by the learned counsel appearing on behalf of the revenue that as such the issue involved in the present case is squarely covered by the decision of this Court in the case of Uttam Steel Ltd. It is submitted that in the case before this Court, this Court was considering Section 11A of the Act, vis–vis Rule 57-I.
It is submitted that therefore in Section 11B of the Act, there is a specific reference to the rebate of duty and such claim of rebate of duty shall have to be made before the expiry of one year from the relevant date. 4 It is further submitted by the learned counsel appearing on behalf of the revenue that Section 11B of the Act can be said to be a parent statute and Rule 18 and notification dated 6.9.2004 can be said to be a subordinate legislation. 7
It is further submitted by the learned counsel appearing on behalf of the revenue that the decision of this Court in the case of Raghuvar (India) Ltd. Department of Revenue, 2017 (355) ELT 342 (Madras) (paras 24 & 25) as well as the decision of the Bombay High Court in the case of Everest Flavours Ltd.
Datar, learned Senior Advocate appearing on behalf of the appellant has submitted that if the contention on behalf of the appellant that the period of limitation of one year prescribed under Section 11B of the Act shall not be applicable with respect to rebate claim is accepted, in that case also, the exporter has to make an application within a reasonable time.
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It is the case on behalf of the appellant that as in Rule 18 of the 2002 Rules and notification dated 6.9.2004, there is no mention to the applicability of Section 11B of the Act and that the claim for rebate of duty under Rule 18 is different and distinct than that of the claim for refund of duty under Section 11B of the Act, the period of limitation prescribed under Section 11B of the Act shall not be applicable, while considering the claim for rebate of duty under Rule 18 of the 2002 Rules. Claim for refund of [ duty and interest, if any, paid on such duty ].— (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date]
[in such form and manner] as may be prescribed and Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:] Provided further that the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest.
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[(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to— ( a ) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ( b ) unspent advance deposits lying in balance in the applicant’s account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; ( c ) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued (4) Every notification under clause ( f ) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its reassembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. — For the purposes of this section, — ( A ) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ( B ) “relevant date” means, — ( a ) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, — ( i ) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or ( ii ) if the goods are exported by land, the date on which such goods pass the frontier, or ( iii ) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; ( b ) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; ( c ) in the case of As per Section 11B(1) of the Act, any person claiming refund of any duty of excise (including the rebate of duty as defined in Explanation (A) to Section 11B of the Act) has to make an application for refund of such duty to the appropriate authority before the expiry of one year from the relevant date and only in the form and manner as may be prescribed. Merely because in Rule 18 of the 2002 Rules, which is an enabling provision for grant of rebate of duty, there is no reference to Section 11B of the Act and/or in the notification dated 6.9.2004 issued in exercise of powers conferred by Rule 18, there is no reference to the applicability of Section 11B of the Act, it cannot be said that the provision contained in the parent statute, namely, Section 11B of the Act shall not be applicable, which otherwise as observed hereinabove shall be applicable in respect of the claim of rebate of duty. If the submission on behalf of the appellant that as there is no mention/reference to Section 11B of the Act either in Rule 18 or in the notification dated 6.9.2004 and therefore the period of limitation prescribed under Section 11B of the Act shall not be applicable with respect to claim for rebate of duty is accepted, in that case, the substantive provision – Section 11B of the Act would become otiose, redundant and/or nugatory.
Case Title: SANSERA ENGINEERING LIMITED Vs. DEPUTY COMMISSIONER (2022 INSC 1234)
Case Number: C.A. No.-008717-008717 / 2022
