1

F.No. V2(52)32/Ahd-III/2012

M/s. Valley Velvette, Survey No. 235, Village Oran, PO Vadvasa, Tal. Prantij, Dist. Sabarkantha (herein after referred to as the appellant for brevity) filed the present appeal against OIO No. 1898/REF/CEX/2011 dated 18.11.2011 of Assistant Commissioner, Central Excise Division, Gandhinagar, Ahmedabad-III.

2.1. The brief facts of the case, are that the appellant are engaged in the manufacture of PVC cloth & produce made thereof and availing Cenvat Credit. The appellant had filed a claim on 08.07.2011 for rebate of duty paid for the goods exported under Section 11-B of Central Excise Act, 1944 read with Rule 18, for `1,32,284 in respect of ARE- 1 No. 04 dated 02.06.2009. Since the said rebate claim has not been filed within the stipulated time limit of one year, a show cause notice was issued to the appellant on the time barred aspect. The adjudicating authority vide the impugned order, had rejected the rebate claim being filed time barred.

2.2. Aggrieved by the impugned order, the appellant filed the present appeal on the ground that: the Customs authority has released the necessary documents on 21.5.2011 only and therefore there is no delay in submitting the documents for rebate purpose; the Commissioner of Customs has permitted to convert the shipping from DEEC to DEPB scheme; due to some dispute regarding samples of the goods, the shipping bill was converted into DEPB from DEEC and the original and duplicate copyof ARE-1 dated 02.06.2009 and EP copy of shipping bill were handed over to the appellant after doing the necessary formalities on 21.5.2011 only; there is no dispute regarding the export of the goods or the payment of duty. They relied the following judgments: Harison Chemicals - 2006(200)ELT 0171,Reliance Industries – 2012(275)ELT 277(GOI), Chamunda Pharma - 2009(244) ELT 192 and Cosmonaut Chemicals - 2009(233)ELT 46(HC).

3. Personal hearing was held on 24.08.2012 and Shri M.K. Oza, Advocate appeared before me on behalf of the appellant. He reiterated the submissions made in the appeal memorandum for consideration. He further submitted copies of citations in respect of Dorcas Market Makers Pvt. Ltd. – 2012(281)ELT 227(Mad.) and Cosmonaut Chemicals – 2009(233) ELT 46 (HC).

4. I have carefully gone through the facts on record and various submissions made in the appeal memorandum and that made at the time of personal hearing. I find that the issue is related to rebate of duty for the export made under ARE-1 No. 04 dated 02.06.2009 under Section 11-B of Central Excise Act, 1944. The appellant havefiled the rebate claim on 08.07.2011, after expiry of the prescribed time limit of One year from the date of export of the goods in question on which rebate of duty has been claimed under Section 11-B of Central Excise Act, 1944.The adjudicating authority had rejected the rebate claim being time barred. I find that the appellant had submitted the rebate claim on 08.07.2011,due to the fact that, the original and duplicate copy of the relevant ARE-1 and EP copy of the shipping bill were handed over to the appellant only on 21.5.2011 by the Custom authorities. There was some dispute regarding samples of the subject consignment, due to which the Commissioner of Customs has permitted to convert the shipping bill to DEPB from DEEC and that is why the delay occurred.

5.Theissue before me to decide in this appeal is that of limitation for filing of rebate claim under Section 11-B of Central Excise Act, 1944.The adjudicating authority has rejected the rebate claim as the appellant have filed the claim of rebateafter expiry of prescribed time limit in terms of Section 11-B of Central Excise Act, 1944 readwith Rule 18 of Central Excise Rules, 2002and Notification No.19/2004-CE dated 06.09.2004, as amended.The ground of the appellant regarding the non-receipt of documents from Customs authority has been summarily disallowed in the impugned order. In this connection, I reproduce the Section 11-B of Central Excise Act, 1944, as under, which stipulates that,

(1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or DeputyCommissioner of Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person :

Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :]

[Provided further that] the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest.

] * * * * [

If, on receipt of any such application, the [Assistant [(2) Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :

Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -

rebate of duty of excise on excisable goods exported out of (a) India or on excisable materials used in the manufacture of goods which are exported out of India;

And the relevant date for filing refund/rebate claim is explained as below:

(A)“refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(B)“relevant date” means, -

(a)in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, -

(i)if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or

The provision of Rule 18 of Central Excise Rules, 2002 under which rebate is allowed is reproduced as below:

“RULE 18. 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.

On going through the provisions of Section 11-B, I find that the rebate claim should be filed within one year from the date of export of the goods. In the present case, the goods have been exported on 12.6.2009 as per Bill of Lading, therefore the relevant date of filing of the claim could be on 11.6.2010, but the appellant filed the claim on 08.07.2011 only. I find that while filing the rebate claim,the appellant has not adhered to the rules and regulations laid therein. In this connection, I reproduce the Chapter IX of the CBEC Manual 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:

“2.4 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. 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 any document is notavailable for which the Central Excise or Customs Department is solely accountable, the claim may be received so that the claimant is not hit by limitation period.”

In this connection, I am of the view that, the appellant could have filed the rebate claim within the prescribed time limit, but they have failed to so, as they have not adduced any of the evidence established that they have presented the rebate claim as stipulated in the Sub-paragraph No. 2.4 of the Manual as such, I find that the Adjudicating authority has correctly denied the claim. I rely upon the following decisions:

(i)B.B. Chemicals – 2012(280)E.L.T. 581(G.O.I.)- wherein Revisionary Authority has held that,

“Exports - Rebate claim - Export of goods - Date of shipment of goods exported on 23-9-2006 - Rebate claim filed on 23-11-2007 - Adjudicating authority rejected rebate claim as time-barred but allowed re-credit of duty paid on exported goods - C.B.E. & C. Central Excise Manual of Supplementary Instructions states that in case any document is not available for which Department is solely responsible, claim may be received so that the same is not hit by limitation - In view of these instructions respondent could have filed rebate claim within one year’s time-limit without EP copy of shipping bill so as to avoid the same getting time-barred but he did not comply with statutory requirement of filing claim within one year under Section 11B of Central Excise Act, 1944 - Rebate claim rightly rejected as time-barred.”

(ii) Indian Oil Corporation Ltd - 2012 (281) E.L.T. 209(Guj.), wherein the Hon’ble High Court held that,

10. To the extent the petitioner’s refund claim pertained to the period beyond one year from the relevant date, the same would not be maintainable. To the extent the claim is within the period of limitation, the Revisional Authority shall re-examine the issue after hearing the petitioner and the Department. For such purpose and to that limited extent, the order of the Revisional Authority is set aside.

(iii)Kirloskar Pneumatic Company- 1996(84) E.L.T. 410(S.C.) , wherein the Apex Court has held that,

Refund - Limitation - High Court under writ jurisdiction cannot direct the Customs authorities to ignore the time limit prescribed under Section 27 of the Customs Act even though High Court itself may not be bound by the time limit of the said Section - Articles 226 and 227 of the Constitution of India.

6. In view of the provisions laid in Section 11-B of Central Excise Act, 1944 and clarifications given in Chapter IX of the CBEC Manual deals with Presentation of refund claim and the ratio of the above referred decisions, I find that the adjudicating authority hascorrectly denied the rebate claim as time barred. I also find that, the facts and circumstances of the cases relied by theappellant are different to that of the present case and therefore not sustained. In view of the above, I find that there is no need of interference in the impugned order and hold that the order of the adjudicating authorityis just and proper.

7. In view of the above, I reject the appeal filed by the appellant and uphold the impugned order.

Sd/-

14.09.2012

( SUNILKUMAR SINGH)

COMMISSIONER (APPEAL-III)

CENTRAL EXCISE, AHMEDABAD.

Attested

(Prasanna K Swami)

Superintendent (Appeal-III)

Central Excise,

Ahmedabad.

To

M/s Valley Velvette,

Survey No. 235,Village – Oran,

PO – Vadvasa, Tal. Prantij,

Dist. Sabarkantha.

Copy to:-

  1. The Chief Commissioner of Central Excise, Ahmedabad.
  2. The Commissioner of Central Excise, Ahmedabad-III.
  3. The Jt./Addl. Commissioner (Systems), Central Excise, Ahmedabad-III for uploading the order in website.
  4. The Assistant Commissioner of Central Excise, Gandhinagar Division.
  5. Guard file.
  6. P.A.file.