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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, GITA GOPI, JJ.
M/s Garden Silk Mills Ltd. – Appellant
Versus
Union Of India – Respondent
R/Special Civil Application No. 23348 of 2019
Decided on : 06-04-2021
Constitution of India, 1950 - Articles 226 and 227 - Central Excise Act - Section 11(B) - Central Excise Rules, 2002 - Rule 18 - Excisable goods - Export order - Manufacture and export of polyester chips and polyester yarn - Whether rebate claim sought by petitioner is admissible or whether same is barred by law of limitation - Principal Commissioner and Ex-Officio Additional Secretary to Government of India, denying petitioner rebate claim on ground of limitation - Petitioner is engaged in manufacture and export of polyester chips and polyester yarn. An export order was received by petitioner from M/s. Flex Middle-Easter FZE, Dubai for export of goods - Petitioner manufactured said goods from the factory located at village and cleared same with payment of Central Excise Duty. Petitioner cleared said goods under prescribed FORM ARE-1 along with all requisite documents and filed the shipping bills by declaring the value of the said goods of Rs.81,09,800/- from port of Nav Sheva, JNPT at Raigadh.
Finding of the court: obtaining of the shipment certificate was very fundamental requirement on part of petitioner. Soon after getting copy of shipment certificate, it has chosen to file rebate claim with all requisite documents and same ought not to have been rejected on ground of limitation. The view adopted by Revisional Authority of department of being bound by period of limitation, despite there being a specific provision of paragraph No.2.4 of CBEC Manual, which is a circumstance as held by Court in Cosmonaut Chemicals (supra) to mitigate an warranted hardship resulting from reading provision of limitation in absolute terms - While considering provision of acceptance of claim by Authority when sole responsibility of supply of document is of department, fact remains that overall requirement is of furnishing of particular documents and in absence thereof, to deny entertainment of such rebate claim and waiting for shipping bill to be delivered by department cannot in any manner be held against the petitioner. More so, when amendment has come on 01.03.2016 by way of Notification No.18 of and claim is of year 2010 and, therefore also, this being a subsequent change applying period of limitation of one year at a later date; decision of Cosmonaut Chemicals (supra) and also of other High Court as discussed above would need to be regarded - Order whereby the claim of petitioner has been rejected on ground of being barred by law of limitation under section 11B of Act is quashed and set aside.
Result: Petition is allowed
JUDGMENT :
SONIA GOKANI, J.
1. This is a petition preferred under Articles 226 and 227 of the Constitution of India arising out of the order No.18-20/2019/CX(WZ)ASRA/Mumbai dated 30.08.2019 passed by the Principal Commissioner and Ex-Officio Additional Secretary to the Government of India, denying the petitioner the rebate claim on the ground of limitation.
2. The facts shorn of the details are as follows:
2.1. The petitioner is engaged in manufacture and export of polyester chips and polyester yarn. An export order was received by the petitioner from M/s. Flex Middle-Easter FZE, Dubai for export of 160480 kgs of polyester chips Textile Grade-160 MTS (hereinafter to be referred to as "the goods") The petitioner manufactured the said goods from the factory located at village: Jolwa; Taluka Palsana, District: Surat and cleared the same with payment of Central Excise Duty. The petitioner cleared the said goods under the prescribed FORM ARE-1 along with all requisite documents and filed the shipping bills bearing No.8696246 dated 27.07.2010 by declaring the value of the said goods of Rs.81,09,800/- from the port of Nav Sheva, JNPT at Raigadh.
2.2. The rebate of central excise duty paid on excisable goods is provided under Rule 18 of the Central Excise Rules, 2002. The Central Government, by notification, grants rebate paid on excisable goods, if any goods are exported, the same shall be subject to such conditions or limitations and fulfilment of set procedure, as may be specified in the notification.
2.3. Notification No.19/2004/CE(NT) dated 06.09.2004 has been issued in exercise of powers conferred under Rule 18 and has been amended from time to time, prescribing conditions, limitations and procedures for grant of rebate of central excise duty paid on excisable goods.
2.4. This notification was again amended by Notification No.18/2016/CE(NT) dated 1.03.2016, whereby the Central Government provided that claim of rebate of duty paid on all excisable goods shall be lodged before the expiry of period specified in section 11(B) of the Central Excise Act. One of the documents for filing the rebate claim is shipping bill (export promotion copy) by the Customs Department as provided in paragraph no.13.2 of Chapter VII read with paragraph No.8.3 of Chapter VIII of CBEC of Central Excise Manual. There was a short shipment to the extent of four bags in the shipping bill No.8696246 dated 27.07.2010, as in 1,60,480 kgs of goods comprising 160 bags. The Customs authority could not generate the shipping bills due to short shipment.
2.5. After exporting the goods, the petitioner vide letter dated 16.08.2010 requested the Deputy/Assistant Commissioner of Customs to issue shipment certificate for the goods exported under Shipping Bill No.8696246 dated 27.07.2010 to Ms/. Flex Middle-Easter FZE. After about a period of one year, on 20.08.2011, a shipment certificate was issued certifying that the goods mentioned under the Shipping Bill No.8696246 were exported.
2.6. On the receipt of such certificate on 20.08.2011, a rebate claim bearing No.13032 dated 11.10.2011 for an amount of Rs.8,35,307/- along with all the requisite documents related to Shipping Bill No.8696246 has been filed with respondent No.2.
2.7. Respondent No.2 vide its order dated 22.12.2011 issued deficiency memo-cum-show cause notice providing deficiencies in the rebate claim. It also declared that the rebate claim was time barred and the quantity of goods mentioned in ARE-1 did not tally with the quantities mentioned in the shipping bills. The deficiency memo also sought some more documents.
2.8. The petitioner on 29.12.2011 replied to the deficiency memo clarifying on each of the points in detail in respect of the limitation. It emphasized that shipping bill or the export promotion copy was not generated by the Customs Department due to short shipment of the goods and, therefore, there was a delay in filing the rebate claim.
2.9. Vide order No.1750/11-12/Deputy Commissioner(Rebate)/Raigadh dat
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