The main legal point established in the judgment is that compliance with the mandatory requirement of the time limit prescribed by Section 11B of the Central Excise Act, 1944, is essential for filing a claim for rebate of duty.

D.Y. CHANDRACHUD, J.

1. The petitioner exported in the normal course of its business a consignment of 360 drums containing Menthol Crystals to Bangkok by a shipping bill dated 3 February 2006. The shipping bill was provisionally assessed on 10 February 2006. The goods were actually exported on 12 February 2006. A finally assessed copy of the shipping bill is stated to have been handed over to the petitioner on 25 June 2007. On 17 July 2007 the petitioner filed two applications claiming a rebate of the Central Excise duty paid on goods which were exported. The petitioner was called upon to show cause by the Assistant Commissioner (Rebate) why the claim should not be rejected. By an order dated 21 September 2007 the Assistant Commissioner rejected the claim for rebate filed by the petitioner. The order was confirmed in appeal by the Commissioner of Central Excise (Appeals). A Revision Application filed by the petitioner has been rejected by the Joint Secretary to the Union Government in the Ministry of Finance.

2. The ground on which the rebate claim filed by the petitioner has been rejected is that it has been filed beyond the period of limitation prescribed by Section 11B of the Central Excise Act, 1944. Under Section 11B a claim for the refund of duty has to be made within a period of one year from the relevant date; the expression “relevant date” being defined to be the date on which the ship or aircraft in which the goods are loaded, leaves India. Since the export of the goods took place on 12 February 2006, the claim has been held to be barred by limitation since it was presented beyond a period of one year.

3. Three submissions have been urged on behalf of the petitioner:

(1) Rule 18 of the Central Excise Rules, 2002 does not prescribe any time limit for making an application for rebate. No time limit has been prescribed in the Notification issued by the Central Government on 6 September 2004. Whereas the earlier Notification dated 12 September 2004 prescribed that the claim for rebate must be made within the period stipulated by Section 11B, such a stipulation is not to be found in the Notification which presently holds the field;

(2) The submission of Form ARE-1 would itself constitute the filing of a rebate claim. Consequently, the actual filing of the rebate claim on 17 July 2007 is a surplusage which must be ignored; and

(3) The Export promotion copy of the shipping bill is required to be filed together with the rebate claim. Since the export promotion copy is a requirement for a rebate claim, the period of limitation cannot commence until this requirement is fulfilled.

4. On the other hand, it has been urged on behalf of the respondents that:

(1) The mandatory requirement of Section 11B must extend to the filing of an application for rebate particularly in view of the fact that Explanation (A) to Section 11B specifically comprehends within the purview of the expression “refund”, a rebate of the 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;

(2) The mandatory requirement of Section 11B is that a claim for refund of duty has to be presented within a period of one year from the relevant date which is defined to be the date on which the ship or aircraft in which the goods are loaded leaves India;

(3) The mere presentation of an ARE-1 form does not constitute a claim for rebate as would be evident from the scheme of the Notification dated 6 September 2004;

(4) While filing a claim for rebate in respect of excise duty paid on goods exported from India, it is not necessary for the exporter to furnish the export promotion copy of the shipping bill and the only requirement is the filing of a self attested copy of the shipping bill. Consequently, the period of limitation would not stand extended to the date when an export promotion copy of the shipping bill was handed over to the petitioner.

5. The rival submissions