Kirloskar Oil Engines Limited vs Union Of India (Uoi) And Anr.
2004 Latest Caselaw 526 Bom

JUDGMENT

R.M. Lodha, J.

1. The claim of the petitioner for rebate of duty amounting to Rs. 89.008,71 in respect of export of spare parts of diesel engines has been rejected by the Assistant Collector of Central Excise (Refunds), Bombay, by his order dated 14th December, 1990. It is this order which is under challenge in extraordinary jurisdiction under Article 226 of the Constitution of India.

2. The order impugned before us is appealable is not in dispute. Section 35 of the Central Excise Act, 1944 provides for an appeal against the impugned order. The statutory remedy of appeal under Section 35 is not only alternative but efficient as well and we hardly find any justifiable ground for bypassing the statutory remedy of appeal. The writ petition is liable to be dismissed on this ground alone.

3. However, since the writ petition remained pending before this Court for more than 13 years, we deem it proper to examine the legality and correctness of the order dated 14th December, 1990 ourselves instead of now relegating the petitioner to pursue the remedy of appeal.

4. The petitioner exported one consignment of the spare parts of Kirloskar diesel engines to Indonesia. The said consignment was shipped on 8th October, 1989. The petitioner claims to be entitled to rebate of duty paid excisable goods exported from India, to the extent and subject to safeguards, conditions and limitations as regards class of goods destination, mode of transport and other allied matters specified. The Central Government in exercise of its power conferred upon it under Rule 12 of the Rules of 1944 issued Notification No. 197 of 1962 as amended whereby procedure to claim rebate of duty paid on excisable goods exported outside India is specified. The petitioner having exported the spare parts of Kirloskar diesel engines made an application for rebate of duty on excisable goods exported by them in the prescribed form 'C' on 23rd April, 1990. It is the petitioner's case that he placed along with the application for rebate the relevant documents. It appears that the Superintendent of Central Excise (Refunds), Bombay-I has by his letter dated 19th June, 1990 informed the petitioner that the claim for refund lodged by him could not be entertained as it was submitted after six months from the date of shipment and therefore, time barred. The petitioner has set up the case that by the said communication he was also informed that if he desired a speaking order for the same, the fresh claim with the specific request for personal hearing may be submitted. Acting thereon the petitioner submitted the fresh application on 28th August, 1990. The petitioner was granted personal hearing on 23rd November, 1990 and by the order dated 26th November, 1990, the Assistant Collector of Central Excise (Refunds) rejected petitioner's claim as time barred.

5. The learned counsel for the petitioner did not dispute that under the notification No. 197 of 1962 as amended, the claim by the exporter was required to be lodged before the expiry of six months from the date of shipment of the goods exported and since the consignment was shipped on 8th October, 1989, the application for rebate (refund) was required to be made on/or before 8th April, 1990. He, however, submitted that in view of the proviso appended to Rule 12, the Assistant Collector was competent to waive any of the conditions laid down in the notification and the period of limitation being one of such conditions it was dispensable.

6. On the other hand, the learned counsel for the revenue submitted that the period of limitation is prescribed by Section 11B of the Central Excise Act and the Assistant Collector was not empowered to dispense with the period of limitation prescribed therein.

7. Section 11B of the Central Excise Act, 1944 (for short 'Act of 1944') provides for claim for refund of duty. It also prescribes the limitation for making such claim. It is not in dispute that at the time the relevant application for rebate of duty was made, the limitation prescribed was six months from the relevant date viz. the date of shipment of goods for export. Section 11B as was holding the field at the relevant time provided for limitation of six months. It is not the matter of debate before us and rightly that the refund referred to in Section 11B includes rebate. The explanation appended to Section 11B in unmistakable terms clarifies that refund includes rebate of duty of excise on excisable goods exported out of India. The authorities, thus, constituted under the Act of 1944 have to adhere to the period of limitation provided in the Act itself and being bound by that, they can only act within the four corners of the Act and not beyond it. The Assistant Collector or for that matter the Collector being the creature of the Act of 1944 cannot be said to have any power to relax the statutory time limit prescribed in Section 11B or waive or extend the limitation prescribed in law.

8. Suffice it to refer to nine Judge Bench decision of the Supreme Court in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., wherein the Supreme Court held that the claim of refund to be made under the Central Excise Act has to be preferred within the period of limitation prescribed under the said Act. With this firm legal position laid down by the Supreme Court, the submission of the learned counsel for the petitioner that Rule 12 of Rules of 1944 enables the Assistant Collector to waive the period of limitation cannot be accepted. Proviso to Rule 12 enables the Collector to waive any of the conditions laid down in the notification but that enabling power shall not include the power to extend, waive or dispense with the period of limitation prescribed in Section 11B of the Act.

9. Since it is an admitted position that the application made by the petitioner claiming for rebate of duty paid on the consignment exported to Indonesia on 8th October, 1989 was required to be made on/or before 8th April, 1990 as per the period of limitation prescribed under Section 11B of the Act of 1944 as well as the notification No. 197 of 1962 dated 17-11-1962 as amended but the application was made on 23rd April, 1990, the rejection of petitioner's application being time barred cannot be faulted.

10. Writ petition, therefore, has to be dismissed. We order accordingly. No costs.