M/S Mehrul Industries (India) vs Union Of India
2023 Latest Caselaw 686 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 6259/2022

M/s Mehrul Industries (India), G-11, Riico Industrial Area, Kapasan, District Chittorgarh Rajasthan Through Its Proprietor Naffisa Salim W/o Mohammed Saleem Chhipa, Aged About 57 Years, R/o Shalimar House, Opp. Delhi Gate, Chhipa Mohalla, Chittorgarh (Raj.).

----Petitioner Versus

1. Union Of India, Through Its Additional Secretary, Ministry Of Finance (Department Of Revenue) Government Of India, 14 Hudco Vishala Building, B Wing, 6Th Floor, Bhikaji Kama Palace, New Delhi-110066.

2. The Assistant Commissioner (R.a.), Ministry Of Finance (Department Of Revenue), Government Of India, 14, Hudco Vishala Building, B Wing, 6Th Floor, Bhikaji Kama Palace, New Delhi-110066.

3. The Commissioner (Appeals), Central Excise And Central Goods And Service Tax, G-105, New Industrial Area, Opp. Diesel Shed, Basni, Jodhpur (Raj.).

4. The Assistant Commissioner, Central Excise And Service Tax Division, Plot No.168-172, Sector-4, Gandhi Nagar, Chittorgarh (Raj.).

----Respondents Connected With D.B. Civil Writ Petition No. 6450/2022 M/s Mehrul Industries (India), G-11, Riico Industrial Area, Kapasan, District Chittorgarh Rajasthan Through Its Proprietor Naffisa Salim W/o Mohammed Saleem Chhipa, Aged About 57 Years, R/o Shalimar House, Opp. Delhi Gate, Chhipa Mohalla, Chittorgarh (Raj.).

----Petitioner Versus

1. Union Of India, Through Its Additional Secretary, Ministry Of Finance (Department Of Revenue) Government Of India, 14 Hudco Vishala Building, B Wing, 6Th Floor, Bhikaji Kama Palace, New Delhi-110066.

2. The Assistant Commissioner (R.a.), Ministry Of Finance

(2 of 5) [CW-6259/2022]

(Department Of Revenue), Government Of India, 14, Hudco Vishala Building, B Wing, 6Th Floor, Bhikaji Kama Palace, New Delhi-110066.

3. The Commissioner (Appeals), Central Excise And Central Goods And Service Tax, G-105, New Industrial Area, Opp. Diesel Shed, Basni, Jodhpur (Raj.).

4. The Assistant Commissioner, Central Excise And Service Tax Division, Plot No.168-172, Sector-4, Gandhi Nagar, Chittorgarh (Raj.).

                                                                   ----Respondents


For Petitioner(s)            :    Mr. Vivek Firoda
For Respondent(s)            :    Mr. Kuldeep Vaishnav



              HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

18/01/2023

These two writ petitions have been preferred by the

petitioner herein for assailing the common order dated 01.03.2021

passed by the Additional Secretary to the Government of India,

Ministry of Finance, Department of Revenue, whereby the

revisions preferred by the petitioner against rejection of its rebate

claims under Section 35 EE of the Central Excise Act were

dismissed and the order dated 10.10.2017 passed by the

Commissioner (Appeals), Central Excise and Central Goods and

Service Tax(CESTAT), Jodhpur rejecting the claim for refund of

rebate of the petitioner were affirmed. The claims filed by the

petitioner were rejected as being time barred as the same were

preferred beyond the period of limitation of one year as stipulated

under Section 11(B) of the Central Excise Act.

(3 of 5) [CW-6259/2022]

Learned counsel Shri Vivek Firoda representing the petitioner

placed reliance on the following judgments:-

1. Central Excise vs. Dorcas Market Makers Pvt. Ltd.,

(2015) 321 ELT

2. JSL Lifestyle Limited vs. Union of India, (2015) 326

ELT 265

3. Camphor and Allied Products Ltd. vs. Union of India,

(2019) 368 ELT 865

4. Gravita India Ltd. vs. Union of India, (2017) 2 RLW

1369.

and urged that the petitioner was bonafidely prevented from filing

the rebate claim applications within the period of one year

because the respondents herein released the export clearance

certificates and associated documents to the petitioner with

significant delay. No sooner the export clearance certificates and

documents were provided to the petitioner, the rebate claim

applications came to be filed before competent authority without

any further delay. Specific averment was made to explain the

delay that the customs authorities did not release the relevant

documents i.e. ARE-one form, duplicate copy, excise invoice,

transporter copy along with EP copy of the shipping bill till August,

2014. These documents were received by the petitioner from the

merchant exporter as late as on 29.09.2014 and within three days

of receiving the same, the petitioner filed the rebate claim

applications. Learned counsel, thus, urged that the applications for

refund should not have been dismissed on the hyper technical

ground of delay and as being time barred.

Per contra, learned counsel Shri Kuldeep Vaishnav

representing the department, has placed reliance on the judgment

(4 of 5) [CW-6259/2022]

rendered by Hon'ble the Supreme Court in the case of Sansera

Engineering Limited. vs. Deputy Commissioner, Large Tax

Payer Unit, Bengaluru decided on 29.11.2022 and urged that

Hon'ble Supreme Court vide this judgment overruled all the

judgments relied upon by the petitioner's counsel. Hence, the

petitioner's writ petitions deserve to be dismissed.

We have heard and considered the submissions advanced by

learned counsel for the parties and have gone through the

impugned orders and the other material placed on record.

We are of the firm view that the plea raised by the petitioner

offering justification to the delay in filing of the claim applications

is absolutely far-fetched and unsubstantiated. It may be noted

that the Central Excise Act and the rules framed thereunder, do

not contemplate extension of time beyond the period of limitation

for entertaining applications for refund of duty and interest rebate

claims, which have to be submitted within a period of one year as

stipulated under Section 11-B of the Central Excise Act. Plea

advanced by the petitioner's counsel that his client was genuinely

and bonafidely prevented from filing the refund applications as the

relevant documents were provided to him after delay is of no avail

because firstly, the petitioner's counsel has failed to demonstrate

by any satisfactory evidence that the claim for rebate could not

have been filed without procuring such documents. There is no

compulsion in law that the claim must be accompanied with the

documents referred to supra. Furthermore, there is no satisfactory

evidence on record to show that as a matter of fact, these

documents were provided to the petitioner on 29.09.2014 as

claimed in the writ petitions. This argument involves purely

disputed question of facts and hence, cannot be entertained in the

(5 of 5) [CW-6259/2022]

extraordinary writ jurisdiction conferred upon by this Court. There

are no two views on the aspect that a time barred claim filed

beyond one year for claiming rebate of duty or interest under

Section 11-B of the Act read with Rule 18 of the Central Excise

Rules cannot be entertained as has been affirmatively held by

Hon'ble the Supreme Court in the case of Sansera Engineering

Limited (supra). It may be stated here that the judgments relied

upon by the petitioner's counsel have been specifically overruled

by Hon'ble the Supreme Court. We are, therefore, least convinced

by the contention advanced by the petitioner's counsel Shri Vivek

Firoda that the petitioner's applications for claim of refund should

have been treated to be within time by extending the period of

limitation beyond one year. The impugned orders dated

01.03.2021 and 10.10.2017 do not suffer from any infirmity

whatsoever warranting interference. Hence, the writ petitions fail

and are dismissed as being devoid of merit.

(RAJENDRA PRAKASH SONI),J (SANDEEP MEHTA),J

7-Pramod/Divya/-

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