M/S Garden Silk Mills Ltd. vs Union Of India
2021 Latest Caselaw 5071 Guj

       C/SCA/23348/2019                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 23348 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MS. JUSTICE GITA GOPI

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== M/S GARDEN SILK MILLS LTD.

Versus UNION OF INDIA ========================================================== Appearance:

MR HARDIK P MODH(5344) for the Petitioner(s) No. 1 MR PY DIVYESHVAR(2482) for the Respondent(s) No. 2 NOTICE SERVED BY DS(5) for the Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MS. JUSTICE GITA GOPI

Date : 06/04/2021

CAV JUDGEMENT

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

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 dated 11.01.2012,

respondent no.2 rejected the rebate claim,

essentially, on the point of limitation. He referred

to the decisions of the Supreme Court and the

High Court, to hold that unless the rebate claim is

filed within one year from the date of export of

goods, it is not entertainable.

2.10. Paragraphs No.2.4 of paragraph No.2 of Chapter

IX of CBEC Manual 2010-11 provides that in case

of non-availability of any document, due to any

reason, for which the Central Excise and Customs

Department would solely be accountable, the

refund claim should be admitted, as the claimant

cannot be in a disadvantageous position on

account of limitation period, if the fault was not

his. It is further the say of the respondent that

there is no power conferred upon the Central

Excise Officer to condone the delay. Aggrieved

petitioner challenged it before the Commissioner

(Appeals), where again emphasis was that there

was no delay on the part of the petitioner to file a

rebate claim, but due to non-availability of export

promotion copy of shipping bill /shipment

certificate issued by the Customs Department, the

petitioner was not in a position to file the rebate

claim. The rebate claim has been preferred on

11.10.2011 after the receipt of copy of shipment

certificate on 20.08.2011. It has relied on the

decision of Cosmonaut Chemicals vs. Union of

India , 2009 (233) ELT 46.

2.11. The Commissioner (Appeals), vide its order dated

29.03.2012 No.US/199 to 201/RGD/2012 upheld

the order of respondent No.2 by holding that the

department was bound by the statutory time limit

under section 11B of the Central Excise Act and

the claim being of beyond one year, the same

cannot be entertained.

2.12. This had been challenged by preferring the

revision application before the Joint Secretary,

Government of India, Ministry of Finance under

section 35EE of the Central Excise Act by

emphasizing that there was no fault on the part of

petitioner to file the rebate claim beyond the period

of one year. The issue is well covered by the

decision of Cosmonaut Chemicals (supra).

Alternatively, it has also been submitted that

section 11B of the Central Excise Act would not

have any applicability in the present case, as the

time limit specified under Rule 18 read with

notification dated 19/2004, was not applicable to

the application made under Rule 18. The revisional

authority vide its order dated 30.08.2019 rejected

the revision application on the ground of limitation.

It also discarded the submission that section 11B

is not applicable for filing the rebate claim, since

the order of 30.08.2019 is not appealable. The

petitioner is before this Court seeking the following

reliefs:

"10. The petitioner, therefore, prays that:

a) This Hon'ble Court be pleased to issue a Writ of Certiorari, or a Writ in the nature of Certiorari or any other appropriate writ, calling for the records of the Order No.18-20/2019- CX(WZ)/ASRA/Mumbai dated 30.08.2019 passed by the Principal Commissioner andEx-Officio Additional Secretary to Government of India (Annexure K) and after going into the legality, validity, and properiety thereof, to quash and set aside the impugned Order dated 30.08.2019 passed by teh Ld. Revisionary Authority (Annexure K);

b) This Hon'ble Court be pleased to issue a Writ of Mandamus, or any other appropriate Writ, Order or direction, directing teh Respondents to sanctyion the Rebate claim along with interest;

c)pending the hearing and final disposal of the Petition, this Hon'ble Court be pleased to direct the Respondents, by themselves, their servants and agents/officers/subordinates to sanction rebate claim with such surety and security as deemed fit by this Hon'ble Court.

d) for ad-interim relief in terms of prayer (c) above;

e)for costs of the Petition and orders thereon; and

f) for such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the

case."

3. This Court has heard learned advocate Mr. Hardik

Modh for the petitioner, who has urged that one of

the two documents, which would be essential

before the person who exported the goods to claim

rebate from the respondent authority, are (1) the

Export Promotion Copy or (2) the Shipment

certificate. In the instant case, the event of export

of the goods occurred on 02.08.2010 vide shipping

bill no.8696246(dated 27.07.2010). He applied for

the shipment certificate in less than a month. The

Revenue issued the said certificate on 20.08.2011

and the rebate claim was filed by the petitioner on

11.10.2011. He has taken us through the Central

Excise Manual of CBEC for shipment instructions

and, more particularly, Chapter VII and paragraph

No.13.2. According to him, paragraph no.13.2

makes it essential to have the shipment certificate

or the proof of export promotion copy. Without

either of the documents, it was not feasible to even

file the rebate claim with short supply of four bags.

There does not appear to be feasibility of getting

export promotion copy. Therefore, the only course

open was to submit shipment certificate for the

goods exported from India on 02.08.2010. He,

therefore, has urged that to deny rebate claim only

on the ground of limitation is impermissible under

these circumstances.

4. In the alternative submission, he has urged that

introduction of time limit was from 01.03.2016,

whereas the transactions in question are prior to

the said date.

5. Mr. Parth Diveyeshwar, learned Central

Government Standing Counsel for the respondents

has urged that the period of limitation cannot be

overlooked by any authority, therefore, each of

them has rightly interpreted and have chosen not

to grant the rebate. According to him, section 11B

prescribes the statutory limit and Rule 18 is the

subordinate legislation and they are interlinked

and cannot be looked at separately. He has urged

that all the contentions raised by the petitioner

have been duly regarded by the Principal

Commissioner , Ex-Officio Additional Secretary to

Government of India.

6. According to him, there is no provision under

section 11B of the Central Excise Act to condone

any delay. Moreover, the applicability of the time

limit of one year, according to the respondents, is

dealt with by the High Court of Bombay in the case

of M/s. Everest Flabour vs. Union of India ,

(2012) 282 ELT 48. According to him, after

detailed discussion on applicability of the period of

limitation, all the authorities have given the

concurrent versions holding the rebate claim to be

clearly time barred.

7. Having thus heard both the sides and also on due

consideration of the pleadings and material on

record, the short question that needs to be

addressed by this Court is as to whether the rebate

claim sought by the petitioner is admissible or

whether the same is barred by the law of

limitation. The factual matrix mentioned

hereinabove have not been disputed. It is also not

in dispute that the goods exported is 1,60,480 kgs

of polyester chips etc Textile Grade-160 meters,

which had been manufactured from the factory

located at village: Jolwa; Taluka Palsana, District:

Surat and the same had been cleared with the

payment of Central Excise duty. Value of the said

goods had been of Rs.81,09,800/- which had been

sent from the port of Nava Sheva, JNPT at Raigadh

vide Shipping Bill bearing No.8696246 dated

27.07.2010.

8. For claiming any rebate of Central Excise duty paid

in excisable goods, Rule 18 of the Central Excise

Rules, 2002 is providing the grant of rebate of duty

paid on excisable goods, subject to certain

conditions or limitations and fulfillment of

proceduralities. Rule under the head of "rebate of

duty" deserves reproduction at this stage:

"Rule 18. Rebate of duty.-- Where any goods are exported, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification." Explanation.- "Export" includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft."

9. In exercise of powers conferred under Rule 18 of

Central Excise Rules, 2002, the Central

Government has issued notification No.19/2004-

CE(N.T) dated 16.09.2004, which provides the

procedure for presentation of claim for rebate to

Central Excise. Worthwhile it would be to

reproduce the same:

"3(b) Presentation of claim for rebate to Central Excise:-

(i) Claim of the rebate of duty paid on all excisable goods shall be lodged along with original copy of the application to the Assistant Commissinoner of Central Excise or the Deptuy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, the Maritime Commissiioner;

              (ii)    The Assistant Commissioner of
              Central     Excise     or    the     Deputy

Commissioner of Central Excise of Central Excise having jurisdiction over the factory

of manufacture or warehouse or, as the case may be, Maritime Commissioner of Central Excise shall compare the duplicate copy of application received from the officer of customs with the original copy receivd from the exporter and with the triplicate copy received from the Central Excise Officer and if satisfied that the claim is in order, he shall sanction the rebate either in whole or in part.

(c) Claim of rebate by electronic declaration:- An exporter may enter the requisite information in the shipping bill filed at such place of export, as may be specified by the Board, for claiming rebate by electronic declaration on Electronic Data Inter-change system of Customs.

The details of the corresponding application shall be entered into the Electronic Data Inter-change system of Customs upon arrival of the goods in the Customs area. After goods are exported or order under Section 51 of the Customs Act, 1961 (2 of 1962) has been issued, the rebate of excise duty shall, if the claim is found in order, be sanctioned and disbursed by the Assistant Commissioner of Customs or the Deputy Commissioner of Customs."

10. This has been amended vide Notification No.18 of

2016 CE(NT) 01.03.2016, whereby the Central

Government provided that the claim of rebate of

duty paid on all excisable goods shall be lodged

before the export of the period specified in section

11B of the Central Excise Act. Therefore, the

Notification no.19 of 2004:Central Excise (NT),

particularly, 3(b)(i) shall be read as thus:

"3(b) Presentation of claim for rebate to Central Excise:-

(i) Claim of the rebate of duty paid on all excisable goods shll be lodged before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 along with the original copy of the application to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacture or warehouse or, as the case may be, the Maritime Commissioner;"

11. Thus, the Central Government has specifically

provided by way of the amendment in the year

2016 from 01.03.2016 that the claim of rebate of

duty paid on all excisable goods shall be lodged

before the expiry of the period specified under

section 11B of the Central Excise Act and the same

shall be done along with the original copy of

application to the Assistant Commissioner, Central

Excise, having jurisdiction over the factory of

manufacture or warehouse or before the Maritime

Commissioner as the case may be.

11.1. It is also to be noted that for filing the rebate

claim, there are certain documents, which are a

must and one of them is the Shipping Bill (Export

Promotion copy) duly endorsed by the Customs

Department, as provided in Paragraph No.13.02

and Chapter VII read with Paragraph No.8.3.

Chapter VIII of CBEC, Central Excise Manual. It is

not in dispute that there was a short shipment to

the extent of four bags so far as Shipping Bill

No.8696246 dated 27.07.2010 is concerned.

Admittedly, there were only 160 bags comprising of

160,480 kgs of goods instead of 164 bags, which

were needed for the purpose of export promotion

copy comprising of 164,492 kgs of bags. The

Customs Authorities, therefore, were unable to

generate and could not have generated shipping

bill or export promotion copy. This short shipment

had caused impediment for the authority

concerned to issue export promotion copy. It is not

in any ones hands to do it, as unless the requisite

quantity of goods are exported, the Customs

Authority would not be generating the shipping bill

(export promotion copy).

12. Therefore, after the expiry of the period, the

petitioner, vide its letter dated 16.08.2010, made a

request to the Deputy/Assistant Commissioner of

Customs to issue the shipment certificate for the

goods exported under the shipping bill No.8696246

dated 27.07.2010 to M/s. Flex Middle-Easter FZE.

13. As mentioned hereinabove, in absence of the

shipping bill or the export promotion copy, the

issuance of the shipment certificate as a proof for

the goods to have been exported was a must and

the request of the same was already made for the

shipment, which was made on 27.07.2010 in less

than four weeks i.e. on 16.08.2010 and this copy

of shipment certificate was issued on 20.08.2011

certifying the fact of the goods having been shipped

under the shipping bill No.8696246. In other

words, this shipment certificate dated 20.08.2011

is a proof of shipment which has been made by the

petitioner and that fact has also not been

questioned or challenged by the respondent

authority.

14. The rebate claim is preferred by the petitioner

bearing No.13032 addressed to the Assistant

Commissioner of Central Excise on 11.10.2011.

Letter addressed to the Assistant Commissioner

indicates that since there was a short shipment of

four bags, the Customs Department was unable to

generate the Export Promotion Copy and on receipt

of the shipment certificate, the rebate claim has

been preferred. In reply to the same, rejection has

come on the ground that the claim under section

11B has become time barred as the same has been

filed after the stipulated period of one year of the

date of shipment. It also provides that quantity of

164000 kgs of goods mentioned in ARE-1 does not

tally with the quantity of 4000 kgs mentioned in

the Shipping Bill No.8712231 dated 30.07.2010

and assessable value of Rs.8,10,980/- is more

than FOB value of Rs.1,96,420/- mentioned in the

shipping bill. He further says that the proof of duty

payment was not produced with the claim and the

bank realization certificate is also not adduced.

Hence, written reply was directed to be sent in 10

days' time from the date of receipt of this

deficiency-cum-show cause notice call for personal

hearing. The personal hearing was scheduled on

3rd, 4th & 5th January, 2012 before the office of the

Maritime Commissioner.

14.1. In answer to the same, on 29.12.2011, the

petitioner made a mention of short shipment of

four bags and reiterated that the Customs

Department could not generate the export

promotion copy. However, the release of Shipment

Certificate was on 20.08.2011 to the CHA.

Therefore, the request was made to condone the

delay on the ground that shipment was done

within six months from the date of clearance of

goods from the factory. The export promotion copy

could not be submitted, as the same was not

generated by the Customs Department. It also said

that later on, on 30.07.2010, four bags had been

shipped. Copies of shipment certificate for shipping

bill No.8696246 dated 27.07.2010 and Shipping

Bill No.8712231 dated 30.07.2010 have been

enclosed. It also gave details of assessed value and

FOB value to urge that total difference is only of

Rs.64,400 between assessable value and FOB

value. It is further submitted that excise duty has

been paid on finished goods on CIF value instead

of FOB value on Mumbai Port. Thus, there is an

excess payment of duty on the freight and

insurance element. It is further stated that rebate

claim under Rule 18 is already preferred and the

excise duty has been paid. Therefore, it is not the

case of the department that something more is

being claimed than what is actually paid. If the

duty has been paid in excess than what should

have been paid after granting the rebate, the

correctness of the assessment can also be

scrutinized and wherever necessary, action should

be taken accordingly.

15. It, therefore, has urged that the rebate claim

should be allowed saying that the respondents

contend that the filing of the rebate claim is time

barred in terms of section 11B. However, in the

given set of facts, recredit of duty paid on the

finished goods needs to be provided and moreover,

what is vital is the date of 01.03.2016 when this

applicability has come and hence also, the period

of limitation would have no role.

16. The Deputy Commissioner (Rebate) passed an

order after briefly stating the facts vide its order

dated 13.01.2012. According to him, there is no

dispute about submissions of the rebate claim after

export on completion of stipulated period of one

year prescribed under section 11B of the Act. The

law, according to him, is well settled by decision of

the the Apex Court rendered in the case of Miles

India Limited vs/ CCE, 1987(3) ELT 641(S.C),

where the Court has held that the appellate

Tribunal as well as the Customs Authority are

bound by the statutory period of limitation. The

Tribunal has emphasized that the time limit of one

year has to be reckoned from the date of shipment

i.e. date on which consignment is shipped out from

seller's place or warehouse. The Tribunal referred

to Chapter XI of CBEC Manual 2001-02, which

deals with refund, in case of non-availability of any

document due to any reason, which the Central

Excise or the Customs Department is solely

accountable, the claim may be admitted so that the

claimant is not in a disadvantageous position with

respect to limitation period. It has been interpreted

that the exporter should have filed rebate claim, as

per the provisions of the CBEC Manual 2001-02

and in similar situation, the case of Exclusive

Steel Pvt. Ltd. reported in 2011 (267) ELT

586 is referred to, where the Court has stated that

even if the relevant documents are not available

with the petitioner company, it could have filed the

application without relevant documents, which the

department was bound to receive so that the

refund is not hit by limitation period. As the

rebate claim is not filed within the period of one

year along with available documents, which were

already in his possession, relying on also the the

decision of CESTAT in the case of Precision

Controls vs. CCE Chennai, 2004(176) ELT

147(Tri-Chennai), it held that there is no

discretion or equitable jurisdiction to allow rebate

claim dehors the limitation as per the provisions of

section 11B, accordingly, it has been rejected.

17. Office of the Commissioner of Central Excise,

Mumbai also confirmed the same. It referred to the

Supreme Court decision in the case of Union of

India vs. Jalyan Udyog, 1993(68) ELT 9 (SC),

which says that the exemption granted may be an

absolute and/or subject to such conditions, as

may be specified in the notification and further

that the condition specified may relate to a stage

before clearance of goods or to a stage subsequent

to the clearance of goods to hold that the

manufacturer was bound to avail section 5A (1)(a)

and did not have option to pay the duty under

Notification No.59 of 2008. It also further held that

Notification No.30 of 2004 dated 09.07.2004 is a

conditional Notification and nothing in this

Notification would apply to the goods in respect of

which, credit on duty on inputs had been taken

under the provisions of the CENVAT Credit Rules,

2004. The appellant, in fact, had taken CENVAT

Credit on input used in the manufacture of

exported goods as declared on the ARE-1 and had

cleared goods on payment of duty vide Notification

No.5 of 2006 dated 01.03.2006. According to the

appellate authority, when the condition of

notification was not satisfied, there was no way the

appellant could have availed the exemption. It also

clearly in connection with the issue of limitation

held that it has been reiteratively emphasized by

the authorities that the appellate Tribunals as well

as Customs Authorities are bound by the statutory

period of limitation. The case of the petitioner that

the Customs did not generate the export promotion

copy of the shipping bill due to short shipment and

the issuance of the Shipment Certificate in lieu of

the shipping bill to their CHA on 20.08.2011 and,

therefore, late filing of the rebate claim is rightly

rejected by the adjudicating authority as time

barred. The assessee is bound by the four corners

of the statute and the period of limitation

prescribed by the Central Excise Act and Rules

framed thereunder must be adhered to. The

authorities functioning under the Act are bound by

the provisions of the Act.

18. This was challenged under section 35EE of the

Central Excise Act before the revisional authority.

The Revisional Authority held that the applicant's

contention that Rule 18 of the Central Excise

Rules, 2002 does not prescribe the period of

limitation of one year and section 11B of the

Central Excise Act, is not relevant for the rebate of

duty is not a legally tenable proposition, since for

the refund and rebates of duty, section 11B of the

Central Excise Act is the statutory provision

directly dealing with the issue. According to the

Revisional Authority, in addition to the time limit

set out under section 11B, there are other

substantive and permanent provisions, which the

authority has to deal with while considering the

issue of refund or rebate claim. The principle of

undue enrichment and method of payment of

rebate of duty are also prescribed under section

11B only. It further held that Rule 18 is a piece of

subordinate legislation made by the Central

Government in exercise of powers given under the

Central Excise Act. It further prescribes conditions

and limitations for granting rebate of duty by

issuing notification which by all means a

subordinate legislation. The basic feature and

condition already stipulated in section 11B in

relation to the rebate of duty need not be repeated

in the said rule and the areas, over and above

already covered in section 11B have been left to the

Central Government for regularization from time to

time. Therefore, there shall need to be a combined

reading of both, section 11B and Rule 18 and it

cannot be contemplated that Rule 18 is

independent of section 11B, as there is an express

provision of one year under section 11B and as per

this provision, the refund includes the rebate of

duty. The condition of filing the rebate claim within

one year is squarely applicable to the rebate of

duty. When dealt with by Assistant Commissioner

or the Deputy Commissioner for revision under

Rule 18, these two provisions being section 11B

and Rule 18 are interlinked and Rule 18 simply

can not be dealt with in isolation.

19. So far as paragraph No.2.4 of Chapter of CBEC

Excise Manual of Supplementary Instructions is

concerned, the same has been referred to by

holding that if no document is available for which

Central Excise or Customs Department is

accountable, the claim is permissible to be received

so that the claim is not hit by limitation period.

The Government if finds that the applicant was

required to file rebate claim within one year, then

even without the copy of shipping bill, so as to

avoid the rebate claim getting time barred and to

take appropriate care to comply with the statutory

time limit the same requires acceptance. The

Revisional Authority has also sought to rely upon

the decision of Bombay High Court rendered in the

case of M/s. Everest Flavour vs. Union of

India, 2012(282) ELT 48. However, it has

chosen not to rely on the decision of Madras High

Court in the case of Union of India vs. M/s.

Dorcas Market makers Pvt. Ltd. , 2015(321)

ELT 45 (Madras) and it also tried to refer to the

decision of Apex Court rendered in the case of

Union of India vs. Kirloskar Pneumatics

Company, 1996 (84) ELT 401 (SC) to hold that

the High Court under the writ jurisdiction cannot

direct the Customs Authorities to ignore the time

limit prescribed under section 27 of the Customs

Act, 1962 even though the High Court itself may be

bound by the time limit of the said provision. The

Customs Authority, which is a creator of Customs

Act, cannot be directed to ignore the provision of

section 27 of the Customs Act and, accordingly, it

has not entertained the refund and upheld the

order in appeal.

20. Apt would be refer to the decision of Ajni

Interiors vs Union of India and others passed

by this Court in Special Civil Application No.

10435 of 2018, which was a case of refund of pre-

deposits with interest. The petitioner Ajni Interiors

was a proprietorship concerned, which changed to

Private Limited Company and functioned in the

name and style of M/s.Ajni Interiors then, M/s.Ajni

Clean Rooms Pvt. Ltd. (now known as, M/s.Ajni

Industries Pvt. Ltd.).. On an intelligence received by

the Head Quarter officer of the Preventive Section

of the Excise Department that the petitioner was

indulging in evasion of the Central Excise duty, the

team of Central Excise Officers visited the premises

and during the course of investigation, the

petitioner deposited 15 lakhs. This difference in

duty was on deposit and not on duty confirmed

during the investigation. Thereafter, the show

cause notice was issued for the recovery of the

Central Excise duty with demand of interest and

imposition of penalty. The Superintendent Central

Excise and Customs ( Range-III) directed the

petitioner to pay further pre-deposit amount of

Rs.3,32,076/-, the same had been deposited and,

accordingly, the total amount deposited was

Rs.18.32 lakhs (rounded off).

20.1. After the show cause notice was issued, the

matter was adjudicated by the Commissioner,

Central Excise (Customs) and the order thereafter

was carried in appeal before the CESTAT, which

allowed the appeal.

20.2. The department challenged the order before the

Apex Court, which when was not entertained, it

filed the review application, which was also

dismissed.

21. After receipt of the order of the Apex Court, the

Revisional Central Excise Authority was addressed

a letter by the petitioner for claim of refund of

Rs.18,32,676/- on the ground of this being pre-

deposit/deposit made by the petitioner during the

investigation. The show cause notice was issued to

the petitioner as to why the refund claim should

not be rejected as the claim was beyond the period

of limitation. The say of petitioner was to an effect

that his is a case of return of pre-deposit and of the

Central Excise duty paid by the petitioner on any

excisable goods and for such return of pre-deposit

the petitioner is not required to file any formal

refund claim under section 11B of the Central

Excise Act, it had, therefore, also questioned the

show cause notice.

21.1. The entire refund claim was rejected being time

barred. The petitioner preferred before the

Commissioner, which also rejected and the matter

was carried to CESTAT, which dismissed the

appeal, upholding both the orders.

22. This Court, at length, considered section 11B of

the Act to hold that the person claiming refund of

excise duty and interest, has to make an

application for refund of such duty and interest to

the authority enumerated therein before the expiry

of one year from the relevant date in such form and

manner as may be prescribed.

22.1. The relevant date is defined in Explanation (A) and

Explanation (B). The date on which the Tribunal

allowed the appeal preferred by the petitioner

which in the case before the High Court was

07.08.2007 and hence, therefore, within one year

from the date of allowing the appeal by the

Tribunal, the petitioner needed to prefer the claim

for refund of excise duty in a prescribed form.

22.2. The Court held that the payment made by the

petitioner was towards the excise duty without

protest and that can never be considered as pre-

deposit. If any payment is made as the pre-

condition for exercise of the statutory right, it can

be termed as pre-deposit. However, it cannot be

equated with voluntary deposit of excise duty paid

even during the course of investigation and prior to

show cause notice or adjudication, to assert that it

is pre-deposit of payment of duty, which was

intended to prevent the incidence of interest and

liability accruing from the non-payment of duty

and, hence, it cannot be termed as deposit. The

Court held that payment made by the petitioner

towards excise duty can never partake the

character of pre-deposit, as mentioned in section

35F of the Act. Therefore, contention that the

amounts were paid involuntarily and, therefore,

are deemed to be under protest and should be

considered as deposits needed to be rejected. The

payments have been made in the nature of Central

Excise duty. They were not considered akin to or in

the nature of pre-deposit, as contemplated under

section 35F of the Act, nor was there anything to

indicate that the payment was made under protest

and hence, the submission that second proviso of

sub-section(1) of section 11B of the Act, which

provides that limitation of one year was not

applied, where duty and interest, if any, paid on

such duty has been made under protest, the Court

further held that the payments made by the

petitioner were in the nature of excise duty and

were not deposits. Therefore, the provision of

section 11B of the Act would be attracted. The

amount, in question, since had not been deposited

under protest, according to the Court, the

petitioner would not be liable to file the claim

beyond the period of limitation. Thus, since the

refund claim had not been filed within the

prescribed period of limitation, the Court held that

the Tribunal was justified in rejecting the claim.

This was challenged before the Apex Court and the

Court, after condoning the delay, did not interfere

with the order of the High Court in Special Leave

Petition (Civil) Diary no.3952 of 2020 in its order

dated 20.02.2020.

22.3. In the decision of Ajni Interiors (supra), of

course, this High Court has held that once the

amount is paid by way of excise duty and not as a

pre-deposit and not even under protest, the period

of limitation under section 11B of the Act would

apply in case of any refund claim. This decision in

the instant case is not to be applied by this Court,

as there are other decisions, which will need to be

taken into consideration. Undoubtedly, the amount

paid by the petitioner herein is not the pre-deposit.

It is a rebate claim for the duty paid for export

made. It is not even the case of the petitioner that

it is either pre-deposit or it is a pre-deposit made

under protest.

23. The petitioner has taken a specific stand that Rule

18 shall need to be regarded independent of

section 11B and for so doing it has relied on the

decision of the Madras High Court and Punjab &

Haryana High Court, which both have relied on the

decision of the Apex Court and has chosen not to

follow the Bombay High Court in this regard. It has

also sought to rely on various Notifications of the

CBEC Central Excise Manual.

24. Apt would be to refer to, at this stage, not only

section 11B of the Act, but also Rule 18 of the

Central Excise Rules, which has been reproduced

hereinabove and notifications viz. Notification

NO.41, Notification No.94-CE(NT) dated

12.09.1994 and Notification NO.19/2004 CE(NT)

dated 06.09.2004 issued by the Central

Government both under Rule 18 as well as

Notification No.18/2016 CE(NT) dated 01.03.2016,

which amended Notification No.19 of 2004.

25. Necessary would it be also to refer to Chapter VIII

and Chapter IX of the CBEC Central Excise

Manual, which speak of export under claim for

rebate and export under claim for refund

respectively. Notification No.41 of 1994 is issued by

the Central Government in exercise of powers

conferred by Clause A of Sub-Rule 1 of Rule 12 of

the Central Excise Rules 1994, which directs the

rebate of duty paid on the excisable goods, as

specified in table annexed and the same can be

claimed on exportation of goods out of India and in

any country, except Nepal and Bhutan to the

exception specified in Column No.3. Proviso gives

details as to when; (1) excisable goods shall be

exported after payment of duty directly from a

factory or warehouse and (2) when they are

exported by the exporter in accordance with the

procedure set out in Chapter IX of the Central

Excise Rules, 1944, (3) they are to be exported

within six months from the date on which they

were cleared for export from the factory of

manufacturer or warehoue or within such

extended period, as the Collector of Central Excise

may, in a particular case, allow; (4) the claim or

the supplementary claim for rebate of duty is

lodged with maritime Collector of Central Excise or

Collector of Central Excise having jurisdiction of

either the factory of manufacture or warehouse, as

mentioned in the relevant export documents

together with the proof of duty of exportation

within the time limit specified in sub-section 11B

of the Central Excise Act and (5) Market price of

the excisable goods, at the time of exportation, in

the opinion of the Collector of Central Excise, be

not less than the amount of rebate of duty claimed.

The rebate of duty is not admissible, if it is less

than Rs.500/-. The exporter also is to undertake

refund of rebate of duty erroneously paid to the

Collector of Central Excise sanctioning such rebate

in accordance with the provisions of section 11A of

the Central Excise Act and, if the excisable goods

are not exported or the if the proof of export thereof

is not furnished to the satisfaction of the Collector

of Central Excise or the Maritime Collector of

Central Excise in the manner and within the

prescribed time limit, on an application being made

by the exporter, the Collector also has the powers

to cancel the export documents. It further provides

that rebate of duty paid on those excisable goods,

which are prescribed under any law for the time

being in force shall not be made. The duty means

the duties of excise collected under the Central

Excise Act, mineral product and additional duties

of Excise Act, additional duties of excise (textiles

exports) special excise duty collected under the

Finance Act.

26. By way of Notification No.18 of 2016 dated

01.03.2016 certain amendments in the Notification

No.19 of 2004 dated 06.09.2004 have been made

in the following manner.

"(2) under heading "(3) Procedures", in paragraph (b), in sub-paragraph(i), after the words "shall be lodged". The words, figures, letter and brackets "before the expiry of the period specified in section 11B of Central Excise Act, 1944(1 of 1944)" shall be inserted."

27. Section 11B in this notification the words have

been that the claim shall be lodged before the

export of the period specified in sub-section 11 B of

the Central Excise Act. This has come into effect

from 01.03.2016.

28. Chapter VIII under the heading of "Export under

the claim for rebate" provides for condition and

procedure relating to export under claim of rebate

as contained in Notification No.19 of 2004 dated

06.09.2004 and Notification No.20 of 2004 dated

06.09.2004 issued under Rule 18 of the Central

Excise Rules. It also specifies that the term

"refund" in section 11B of the Central Excise Act,

includes rebate of duty of excise on excisable goods

exported out of India or on excisable goods used in

the manufacture of goods, which are exported out

of India. Thus, the procedure prescribed and

specified in the said rules and notification are

made subject to section 11B of the Act.

29. It is needed to be noted that the procedure

prescribes presentation of the refund claim, which

states that any person, who deems himself entitled

to refund of any duty or excise or other duties or

he has been informed by the Department that the

refund is due to him, shall present the claim in

proper format along with all relevant documents

supporting his claim and also the copies of

documents supporting his declaration that he has

not passed on duty in incidence.

30. Paragraph No.2.4 provides clearly and particularly

that it may not be possible to scrutinize the claim

without accompanying documents and decide

about its admissibility. If the claim is filed without

requisite document, it may lead to delay in

sanctioning of the refund. Moreover, the claimant

of refund becomes entitled for interest in case

refund is not given within three months of the

filing of the claim. Therefore, the submission of

refund claim without supporting documents will

not be allowed, even if the claim is filed by post or

some similar mode. The claim should be rejected or

returned with query memo depending on the

nature and importance of document not filed and

the claim shall be taken as admissible only when

all relevant documents are available. In case, any

document is not available, for which the Central

Excise of Customs Department is solely

accountable, the claim may be received so that the

claimant is not hit by limitation period. Under the

Heading of "Scrutiny of Refund and Claim

Sanction", it further provides that Divisional Office

will scrutinize the claim in consultation with Range

Officer, where necessary check with refund claim

application is complete and is received with all the

relevant documents. This should be done at the

time of receipt of refund claim and in case of

deficiency, the same to be pointed out to the

applicant with a copy to the Range Officer within

15 days of the receipt. Undoubtedly, Paragraph

No.2.4 provides that if any document is not

available for which the Central Excise or the

Customs Department is solely accountable, the

claim may be received so that the claimant is not

hit by limitation period. It is not out of place to

make a specific mention that words added in the

Notification no.18 of 2016 dated 01.03.2016 that

the claim "shall be lodged", before the expiry of

period specified in section 11B of the Central

Excise Act, 1944, are from 01.03.2016. The claim,

in the instant case, is of the year 2011.

31. Reference would be needed of Paragraph No.13.2 of

Chapter VII read with Paragraph No.8.3 of Chapter

VIII of the CBEC Excise Manual, which provide for

the documents necessary for filing the claim of

rebate.

32. Paragraph No.8.3 reads as under:

" 8.3 The following documents shall be required for filing claim of rebate:

(i) A request on the letterhead of the exporter containing claimof rebate, A.R.E 1 number and dates, corresponding invoice numbers and dates amount of rebate on each A.R.E 1 and its calculations,

(ii) original copy of the A.R.E. 1,

(iii) INVOICE ISSUED UNDER RULE 11,

(iv) self attested copy of shipping Bill, and

(v) self attested copy of Bill of Lading.

(vi) Disclaimer Certificate [in case where claimant is other than exporter]."

33. Thus, what makes it clear on reading the

requirement of these paragraphs of CBEC Manual

that they insist on specified documents, one of

which is a shipping bill for the sanction of the

claim for rebate. On overall reading of all these

necessary conditions reveal that the incomplete

claim would not be tenable as there is a specific

emphasized for sanction of claim for rebate by the

Central Excise Department.

34. It also provides for acceptance of application for

rebate when requisite document is unavailable due

to non-action or non-doing on the part of the

department so that the interest may not need to be

paid and the period of limitation does not affect

adversely the party. Thus, self-attested copy of the

shipping bill was unavailable, as there was a short-

shipment to the extent of four begs in relation to

the Shipping Bill No.8696246 dated 27.07.2010

and, therefore, the Customs authorities on a

request had issued a shipment certificate on

20.08.2011.

35. Rule 18 speaks of rebate of duties for any goods

exported by Notification of the Central Government

for the duty paid on excisable goods or duty paid

on material used in the manufacture for processing

of such goods, subject to such conditions and

limitations and fulfilment of such procedure, as

may be specified in the notification. If one looks at

Notification No.19 of 2004 and amended from time

to time, the same prescribed conditions, limitations

and procedures for rebate on duty paid on

excisable goods.

36. As the Notification No.18 of 2016 CE(NT) was

amended by Notification No.19 of 2004 from

01.03.2016 ,the decisions of the Madras High

Court and Punjab & Haryana High Court relying

on the decision of the Apex Court in the case of

Collector of Central Excise, Jaipur vs.

Raghuvar (India) Limited , 2000(118) ELT

311(SC) shall need to be regarded where the issue

was identical. The Apex Court was deciding the

time limit stipulated under section 11A of the

Central Excise Act where some Modvat could be

made applicable in the recovery of the credit under

section 57(1) of the Central Excise Rules, which did

not have any reference to section 11A and the

Court held that the time limit of section 11A would

have no applicability under Rule 57(1), which is a

specific provision in absence of any reference of

section 11A in the Rule.

37. Apt would be to refer to the decision of this Court

in Cosmonaut Chemicals (supra), where the

rebate claim was filed beyond the time limit of one

year on the ground of export promotion copy of the

shipping bill provided by the Customs Department

belatedly. The Court referred to the Shipping Bill

Manual of Supplementary Instructions, which

indicates that the refund or rebate claim

deficiency, in any manner, shall be admitted

without delay, even if the non-availability of

documents are attributable to department. The

statutory provisions, if are not providing for

admission of claim when documents are not

available, what weighed with the Court is that the

Authorities cannot be asked to accept deficient

claim and the same is needed to be accompanied

by requisite documents in case of any assessee

who has exported duty paid goods. Therefore, such

claim is not to be rejected on the ground of

limitation, when delay is on the part of Custom

Authorities in providing copy of the shipping bill

bearing endorsement.

37.1. Relevant paragraphs of findings and observations

are reproduced as under:

"9. On a plain reading of the aforesaid 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 11B 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.

10. In this context one has to keep in mind as to why the provision prescribes attachment of documents to such rebate claim. The object of the said requirement, simply stated, is nothing else but cross

verification of the fact that :(1) the goods are exported outside India, and (2) such goods are duty paid goods. That is why the requirement of the Rules to obtain endorsement from the Customs officials on the shipping bills under which the goods have been exported.

11. The Central Board of Excise and Customs, in exercise of its delegated legislation, has framed the Manual of Supplementary Instructions. In Chapter 1 Part 1 of the said CBEC Manual the scope of the Manual has been explained. Paragraph No.1.1 indicates that the instructions are supplemental to, and must be read in conjunction with the Act and the Rules. Paragraph No.2 makes it clear that the Manual is a public document and is made available to all interested persons. On a conjoint reading of paragraph Nos.1.1 & 1.2 of the Manual it is also apparent that instructions therein are applicable throughout India and Officers of Central Excise Department are not entitled to depart therefrom, without previous approval of the Commissioner, who in turn is required to obtain sanction from CBEC for such deviation.

12. Chapter IX of the CBEC Manual 2001- 02 deals with REFUND and paragraph No.2 deals with Presentation of refund claim. Sub-paragraph No.2.4 of said paragraph No.2 deals with the subject matter of controversy and reads as under :

?S2.4 It may not be possible to scrutinise the claim without the accompanying documents and decide about its admissibility. If the claim is filed without requisite documents, it may lead to delay in sanction of the refund. Moreover, the claimant of refund is entitled for interest

in case refund is not given within three months of the filing of claim. Incomplete claim will not be in the interest of the Department. Consequently, submission of refund claim without supporting documents will not be allowed. Even if claim is filed by post or similar mode, the claim should be rejected or returned with Query Memo (depending upon the nature/importance of document not filed). The claim shall be taken as filed only when all relevant documents are available. In case of non-availability of any document due to reasons for which the Central Excise or Customs Department is solely accountable, the claim may be admitted so that the claimant is not in disadvantageous position with respect to limitation period.

13. It is the last sentence of the aforesaid sub-paragraph which has generated the present controversy. The case of the petitioner is that the said sentence viz. commencing with the words in case of nonavailability of any document and ending with the words with respect to limitation period indicates that the normal rule that a claim application should be accompanied by requisite documents within the period of limitation has been modified so as to ensure that an assessee is not put to disadvantage only because of lapse or laxity on part of the Officers of Central Excise Department or the Customs Department. On the other hand the principal thrust of respondent authority, based on interpretation of the very sentence, is that the said sentence stipulates an exception to the effect that where, in a case, the claim is not accompanied by documents, and such deficiency is on account of non supply of the requisite documents by the Officers of the Department a deficient claim has to be

made within the period of limitation prescribed and such a claim shall be considered as and when the deficiency is removed by supplying relevant documents at a subsequent point of time.

14. When one reads entire sub-paragraph No.2.4 as a whole it is not possible to accept the stand adopted by the respondent authority. The text of the said sub-paragraph and the language employed therein would indicate that an assessee cannot claim refund/rebate when the application is incomplete in any manner whatsoever. In fact the submission of a claim without supporting documents will not be allowed, that is the mandate to the officer who is entitled to receive and scrutinise such a claim. It is further provided that in a case where an assessee files the claim by sending the same through post or by adopting a similar mode viz. a mode other than personal presentation, the claim is required to be rejected or returned with a query memorandum depending upon the nature or importance of document not accompanying the claim. It is further provided that the claim shall be taken as filed only when all the relevant documents are available.

15. The last sentence in the said sub- paragraph provides for a situation 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. The aforesaid sentence uses the word "admit"

and the last part uses the phrase with respect to limitation period". The use of the aforesaid terms are significant and indicative. On reading of the entire sub- paragraph No.2.4 it becomes clear that a claim which is deficient in any manner shall not be taken as filed (emphasis supplied) and shall be taken as filed only when all relevant documents are available. As against that the latter part talks of the claim being admitted with respect to limitation period. The legislature has not stated that claim may be admitted so that the claimant is not put in a disadvantageous position within the limitation period, but the words used are with respect to limitation period. In other words, the intention that flows from a plain reading of the language employed is that an exception is provided for in cases where a claim application cannot be tendered for want of requisite documents and such lapse is on account of nonavailability of such documents due to the department being solely accountable. In such circumstances, an assessee cannot be put to disadvantage by asking the assessee to tender a deficient claim within the period of limitation and simultaneously treat the claim as not having been filed till the point of time all relevant documents are available.

16. Aforesaid interpretation derives support from the earlier part of the same sub-paragraph wherein it is provided that if a claim is not processed and refund is not granted within a period of three months a claimant may become entitled to interest on the refund and hence, such incomplete claim will not be in the interest of the department. In fact, as noticed hereinbefore, submission of refund claim without supporting documents is prohibited.

17. There is one more aspect of the matter. Chapter 8 of the CBEC Manual is EXPORT UNDER CLAIM FOR REBATE. Paragraph No.8 of the said Chapter pertains to Sanction of claim for rebate by Central Excise. Sub-paragraph No.8.4 reads as under :

?S8.4. After satisfying himself that the goods cleared for export under the relevant A.R.E.1 applications mentioned in the claim were actually exported, as evident by the original and duplicate copies of A.R.E.1 duly certified by Customs, and that the goods are of 'duty- paid' character as certified on the triplicate copy of A.R.E.1 received from the jurisdictional Superintendent of Central Excise (Range Office), the rebate sanctioning authority will sanction the rebate, in part or full. In case of any reduction or rejection of the claim, an opportunity shall be provided to the exporter to explain the case and a reasoned order shall be issued". 17.1 As noted hereinbefore, the claim for rebate is in relation to excise duty paid on the goods which are exported outside India. When one reads the requirement of shipping bill being endorsed by the Customs authorities evidencing the physical export of goods which are duty paid it becomes clear that the entire scheme is an integrated scheme to promote exports. In fact the endorsement requirement itself stipulates endorsement of a copy of shipping bill by use of the phrase 'export promotion'. Thus an interpretation which advances the object of the scheme has to be preferred as against a construction which militates against the scheme.

18. As noticed hereinbefore, provisions of Section 11B 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.

19. The position in law is well settled that any procedure prescribed by a subsidiary legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. In the present case obtaining of an endorsed copy of shipping bill is primarily a procedural requirement and such procedure is not within the control of claimant assessee.

20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of Section 11B of the Act read with paragraph No.2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents i.e. from the said point of time.

21. The view adopted by the Revisional Authority that a departmental authority is bound by the prescribed period of limitation and cannot condone any delay also does not merit acceptance in light of what is stated hereinbefore. The Adjudicating Authority and the Revisional Authority have read the period of

limitation divorced from sub-paragraph No.2.4 of the CBEC Manual which has provided for a circumstance to mitigate the unwarranted hardship resulting from reading the provision of limitation in absolute terms. In other words, howsoever limited, an exception has been carved out in cases where the delay has occurred due to circumstances beyond control of the claimant assessee. In other words, in a case where the so called delay is on account of the lapse on part of the Central Excise Department or the Customs Department.

22. 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 nonavailability 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."

38. In the instant case, in view of the well settled position of law that the procedural requirement cannot defeat the substantial right of the party ,as in absence of shipping bill, insistence on the shipment certificate was inevitable. Therefore, obtaining of the shipment certificate was the very fundamental requirement on the part of the petitioner. Soon after getting the copy of the

shipment certificate, it has chosen to file the rebate claim with all requisite documents and, therefore, the same ought not to have been rejected on the ground of limitation. The view adopted by the Revisional Authority of the department of being bound by the period of limitation, despite there being a specific provision of paragraph No.2.4 of the CBEC Manual, which is a circumstance as held by the Court in Cosmonaut Chemicals (supra) to mitigate an warranted hardship resulting from reading the provision of limitation in absolute terms.

39. Even while considering the provision of acceptance of claim by the Authority when sole responsibility of supply of document is of the department, the fact remains that overall requirement is of furnishing of particular documents and in absence thereof, to deny the entertainment of such rebate claim and, therefore, waiting for the shipping bill to be delivered by the department cannot in any manner be held against the petitioner. More so, when the amendment has come on 01.03.2016 by way of Notification No.18 of and the claim is of the year 2010 and, therefore also, this being a subsequent change applying the period of limitation of one year at a later date; the decision of

Cosmonaut Chemicals (supra) and also of other High Court as discussed above would need to be regarded.

40. Order No.18-20/2019-CX(WZ)/ASRA/Mumbai dated 30.08.2019, whereby the claim of the petitioner has been rejected on the ground of being barred by the law of limitation under section 11B of the Act is quashed and set aside. The petition is allowed accordingly. Let the rebate claim be processed and sanctioned by the authority concerned within 12 weeks from the date of receipt of the copy of this order in accordance with law.

(MS. SONIA GOKANI, J)

(GITA GOPI,J)

SUDHIR