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2009(1) GCD 236(Guj)(DB)
Hon’ble Mr. Justice D.A. Mehta
Hon’ble Mr. Justice H.N. Devani
Cosmonaut Chemicals & Anr.
Versus
Union of India & Anr.
Special Civil Application No. 12862 of 20041—Decided on 30/07/2008
Central Excise Act, 1944 — Sections 11-B and 11-B(2) Proviso(a) — Central Excise Rules, 1944 — Rules 12(1)(a) and 18 — Claim for rebate — Export of manufactured goods — Expiry of period of limitation —Scope of — Finding as to — Under the provisions of the Act rebate of duty of excise on excisable goods exported out of India is admissible to assessee provided the application is made in accordance with law within the period of limitation — It is however prescribed in Chapter IX of the CBEC Manual, 2001-2002 that in case of non-availability of any document for which the Central Excise or Customs Department is solely accountable the claim may be admitted with respect to limitation period — It is an exception provided for in cases where a claim application cannot be tendered as in the present case for want of requisite documents and such lapse is on account of non-availability of such documents due to the department — In the case obtaining of an endorsed copy of shipping bill is primarily a procedural requirement and such procedure was not within the control of claimant assessee — It cannot, therefore, be held that the petitioner was at fault in making the claim belatedly because the period of limitation has to be considered in the light of availability of the requisite documents — Accordingly Court quashed the impugned orders and directed Adjudicating Authority for deciding the petitioner claimant case afresh.
Held :
On a plain reading of the provision it can be seen that the section provides for making a claim for refund of duty(which includes rebate of duty) but such a claim has to be made before the expiry of one year from the relevant date. The application has to be in the form and manner as prescribed and the application shall be accompanied by such documentary or other evidence which will enable the applicant to establish that the amount of duty of excise in relation to which such refund/rebate is claimed was collected from, or paid by, the claimant and the incidence of such duty had not been passed on to any other person. In so far as the incidence of duty being passed over it is clear that the same is not required to be considered, as in relation to a claim for rebate, under the Proviso below Sub-section(2) of Section 11-B of the Act vide Clause(a) of the Proviso rebate of duty of excise on excisable goods exported out of India or inputs which have borne duty of excise having been used in manufacture of goods which are exported out of India the assessee becomes entitled, provided the application is in accordance with the prescription, viz. in form and manner and is accompanied by relevant documents. [Para 9]
Where a claimant is not in a position to make a claim due to non availability of documents for the reason that such documents are not available because Central Excise Department or the Customs Department is solely accountable for such deficiency, i.e. non availability of the requisite documents, then it is stated that the claim may be admitted so that the claimant is not put in a disadvantageous position with respect to limitation period. [Para 15]
Provisions of Section 11-B of the Act stipulate that a claim has to be accompanied by requisite documents, requisite documents in case of an assessee who has exported duty paid goods being copy of shipping bill duly endorsed by the Customs Authorities. Hence, if the Customs Authorities delay parting with a copy of shipping bill bearing necessary endorsement, an assessee cannot be put to disadvantage on the ground of limitation when the assessee is not in a position to make a claim without accompanying documents. [Para 18]
It is necessary to state and clarify here that mitigating circumstance as flowing from the aforesaid legislative scheme is one and one only viz. where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and in the circumstances on a conjoint reading of the provision and the instructions in the CBEC Manual there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. [Para 22]
Law Laid Down :
Under the scheme mitigating circumstance is one and one only of non-availability of requisite document on account of department, where under claimant would be entitled to prefer claim beyond period of limitation.
D.A. Mehta, J.—Both these petitions are taken up for hearing together as the issue involved is common, though on facts there is slight variation, which however, would not make any material difference.
2. Special Civil Application No. 12862 of 2004 has been heard as the lead matter and accordingly detailed facts as narrated are taken from the said petition.
3. The petitioner, a partnership firm, is engaged in the business of manufacturing and exporting chemicals manufactured. It is the case of the petitioner that on 27.05.2001 five consignments of manufactured goods were exported. In terms of Rule 12(1)(a) of the Central Excise Rules, 1944 and Rule 18 of the Central Excise Rules, 2002 respectively, the petitioner preferred rebate claims. Such rebate claims had to be accompanied by an export promotion copy of the shipping bill duly endorsed by the Customs authorities evidencing proof of export. The said claims were filed on 29.07.2002 and 16.08.2002. On 30.09.2002 the petitioner was served with a Show Cause Notice proposing to reject the rebate claims as the claims were found to be beyond the statutory period of limitation prescribed under Section 11-B of the Central Excise Act, 1944(the Act). Vide Order-in-Original dated 15.01.2003 the claims made by the petitioners were rejected.
4. The matter was carried in Appeal by the petitioner and vide order dated 28.08.2003 Commissioner(Appeals) allowed the appeal by recording as under:
“4. I have carefully considered the facts on record and the submissions made by the appellants. It is an admitted position that the EDI section of Customs House, Nhava Sheva had issued Export Promotion copy only after the stipulated period of filing rebate claim in the present case was over. The Deputy Commissioner, EDI department, Nhava Sheva’s letter packed in a sealed cover addressed to Divisional Head is dated 16.8.2002, which is beyond one year’s period. It is not necessary that the DC. Nhava Sheva should have mentioned in his letter that rebate claims will be filed late due to late printing of EP copy of shipping bills. It is a routine matter that any rebate claim has to be filed only after receipt of the said copy of shipping bill alongwith other required documents. Unless, the appellant received said documents, they could not have filed rebate claim”.
5. The respondent-Revenue carried the matter in revision challenging the order of Commissioner(Appeals) and succeeded vide impugned order dated 12.05.2004. The reasons which have weighed with the Revisional Authority read as under :
“7. In the instant case, undisputed facts indicate that the rebate claim were not filed within the statutorily prescribed time period. The Respondents admit that there was delay but submit that the delay was due to delay on part of customs authorities in handing over E.P. copy of shipping bill to them. In other words, they submit that as rebate claim is to be filed alongwith all required documents and they could not do this in the absence of EP copy of shipping bill, the consequent delay is to be condoned.
8. The question that emerges is - can the Commr.(A) condone this delay and direct the Original Authority to consider the subject rebate claims ?
9. Govt. notes that this issue is well settled by the Hon’ble Supreme Court. In the case of U.O.I. vs. Kirloskar Pneumatic Company(1996(84) ELT 401(SC), the Apex Court held that the customs authorities who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to the time limit prescribed by the Customs Act. Thus authorities created by statute cannot ignore the time limit prescribed by the statute. In view of the above, the inescapable conclusion is that the Commr.(A) erred, in ignoring the time limit prescribed by the statute.
10. The next question that emerges is, what is the course of action for the claimant when some documents are not available because of laxity on the part of dept. over which they have no control. Para 2.4 of Chapter 9 of the
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