IMPORTANT POINT
The limitation period for refund claims under the Central Excise Act can be adjusted based on the time spent before an incorrect authority.

JUDGMENT :

(Ritu Bahri, CJ.) :

The appellant – M/s Sara Sae Pvt. Ltd., has come up in the appeal seeking quashing of the impugned order dated 01.07.2016, passed in Central Excise Appeals, passed by the CESTAT, New Delhi, Annexure no.11 to the appeal. Further prayer is made to allow the refund of Rs.21,09,929/- with appropriate interest under section 11BB of the Act.

2. The appellant - M/s Sara Sae Pvt. Ltd, is registered with the Central Excise Department bearing Registration No.AAACS6857 I XM 002, for manufacturing of oil field equipment, machinery and parts thereof, falling under Chapter 84 of the Central Excise Tariff Act, 1985. The appellant supplied oil field equipment, machinery and parts thereof to M/s Oil and Natural Gas Commission and to M/s Oil India Limited under the International Competitive Bidding, on payment of appropriate Central Excise Duty, under the cover of invoices.

3. The appellant made a refund claim of Rs.28,71,563/- on 09.05.2014 in the Central Excise Division, Dehradun, and this application was made with the Director General Foreign Trade (DGFT, Dehradun) on 03.10.2013.

4. Under section 8.3 (c) of the Foreign Trade Policy, there was an exemption from terminal excise duty for domestic manufacturing and supply of goods under the International Competitive Bidding (deemed exports scheme). The appellant under the Foreign Trade Policy, first charged the Central Excise Duty in the invoices, while making the sale under the Foreign Trade Policy, while making the sale in the invoices, the connotation was made “excise duty to be claimed under deemed exports scheme”.

5. The case of the appellant is that effectively no Central Excise Duty had been claimed from M/s ONGC and Oil India Limited, and in this backdrop, the cenvat credit could not be availed by the purchaser.

6. As per the Central Excise Notification No.12/2012 C.E. dated 17.03.2012, all goods falling under any chapter, supplied against International Competitive Bidding were exempted from payment of Central Excise Duty read with Condition no.41, i.e. if the sale were exempted from custom/additional custom duty then mutatis mutandis the same would ipso-facto, would also be exempted from payment of Central Excise Duty under the Notification No.12/2012 C.E. dated 17.03.2012.

7. The Ministry of Commerce and Industry, Department of Commerce, Udyog Bhawan, New Delhi, had issued a Notification No.4 (RE-2013)/2009-2014 dated 18.04.2013, where amendments were made to para 8.3 (c) of the Foreign Trade Policy, concerning “deemed exports scheme”. It was clarified that refund of terminal excise duty would be given if exemption is available, and it was further clarified that exemption from terminal excise duty was available to supply against ICB. A further clarification was given vide Circular No.16 (RE-2012/2009-2014) dated 15.03.2013, by the Ministry of Commerce and Industry, Director General of the Foreign Trade, Udyog Bhawan, New Delhi, about exemption for supply of goods under ICB. It was further clarified that if there has been any error/oversight committed, then the agency collecting the tax, would refund it, rather than seeking the reimbursement from the another agency. It was further clarified that if the supplies are ab-initio exempted from payment of excise duty, no refund of terminal excise duty, should be provided by the DGFT. Notification dated 18.04.2013 and 15.03.2013, Annexure no.2 to this appeal.

8. The appellant made refund claims with the DGFT, Annexure no.3, collectively, after clearing goods from the factory, on the payment of the appropriate Central Excise Duty, filed the refund claim with the office of Deputy Director General, Foreign Trade (DGFT) on 14.05.2013, 27.05.2013, 05.08.2013 and 03.10.2013, for claiming refund. This was done immediately after obtaining the payment certificate from the concerned Banker (BRC)/or from the Project Authority concerned. The copies of the refund claims filed with DGFT, are being collectively enclosed as Annex