By TIOL News Service

CHENNAI, APR 05, 2015: THIS is an appeal by Revenue against the order of High Court (Single Judge) holding that the limitation under Section 11B is not applicable to the rebate claims filed under Rule 18 read with Notification No 19/2004 CE( NT) - 2012-TIOL-108-HC-MAD-CX

Before the High Court, revenue contended:

As per sub-section (1) read with sub-section (5) (B)(a)(i) of Section 11B of the Central Excise Act, 1944, a claim for refund of duty paid on the excisable goods used in the manufacture of goods exported shall be filed within one year from the date of departure of the Ship or Aircraft in which the goods are loaded. Since the claim was admittedly filed by the first respondent beyond the period stipulated in the statute, the same was liable to be rejected.

The respondent contended that the period of limitation prescribed in the statute, was never treated as sacrosanct by the Department either under the Customs Act, 1962 or under the Central Excise Act, 1944 and that the Rules for claiming refund always incorporate separate provisions prescribing a period of limitation and that therefore, the Rules were construed to be self contained.

After hearing both sides, the High Court held:

One may tend to think that even a claim for rebate may have to be filed within one year from the relevant date, by virtue of sub-section (1) read with Explanation (B) for the expression "relevant date" under sub-section (5). But, the paradox is that the question of rebate of duty is governed separately by Section 12 (Rule 12-sic) and the entitlement to rebate would arise only out of a notification under Section 12(1) (Rule 12(1)-sic). The definition of the expression "relevant date" under sub-section (5) of Section 11B does not take care of this contingency.

Sub-section (3) of Section 11B contains a non-obstante Clause which excludes any judgment, decree or order of any Court or Tribunal. But, the definition of the expression "relevant date" under Clause (B)( ec ) of the Explanation under sub-section (5) of Section 11B includes within its purview the date of judgment, decree or order, in cases where the duty becomes refundable as a consequence of any judgment, decree or order. This is perhaps the reason why the non-obstante Clause contained in sub-section (3) is specifically made applicable only to the power of the Assistant Commissioner to order refund under sub-section (2). It is not made applicable to sub-section (1) of Section 11B which stipulates the period of one year for filing a claim.

Therefore, the view taken by the learned Judge that Rule 18 is to be construed independently, cannot be said to be wrong. Rule 18 of the Central Excise Rules ,2002 , by itself does not stipulate a period of limitation.

The rebate of duty under Rule 18 should be as per the notification issued by the Central Government. The Notification bearing No.19/2004 dated 6.9.2004 prescribes the conditions, limitations and procedures for considering the claim for refund. Under Clause 2(d) of the notification, the rebate claim may be allowed from such place of export and such date, as may be specified by the Board, by filing electronic declaration. This Notification dated 6.9.2004 superseded the previous notification bearing No.41/1994 dated 12.9.1994. At the time when the 1994 notification was issued, the procedure for filing electronic declaration had not been made. Since everything was made manually at that time, the notification of the year 1994 prescribed a time limit for filing claim. But, the 2004 notification did not contain the prescription regarding limitation. This was a conscious decision taken by the Central Government and hence, the view taken by the learned Judge is fair and reasonable.

(See 2015-TIOL-820-HC-MAD-CX)