Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1861 (RAJ)

Banswara Syntex Limited v. Union of India

2016-12-20

DEEPAK MAHESHWARI, GOVIND MATHUR

body2016
ORDER : Govind Mathur, J. 1. The petitioner, a company corporated, has preferred this petition for writ to assail validity of the order dated 9.4.2012, passed by the revisional authority under the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944'). By the order aforesaid the revisional authority affirmed the order dated 1.4.2010, passed by the Commissioner of Central Excise (Appeals), Jaipur-II with respect to order in original passed by the Deputy Commissioner, Central Excise Division, Chittorgarh. 2. In brief, facts of the case are that an application to have rebate as per Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules of 2002'), preferred by the petitioner on 17.3.2008 in respect of export of goods on payment of duty through merchant exporter, came to be rejected being barred by limitation as per Section 11-B of the Act of 1944. Being aggrieved by rejection of claim, an appeal was filed before the Commissioner (Appeals), that came to be rejected vide order dated 1.4.2010. A revision petition preferred before the Central Government as per Section 35-EE of the Act of 1944 was also rejected under the order impugned dated 2.4.2012. The appellate authority as well as the revisional authority, after examining facts of the case, arrived at the conclusion that the rebate was not claimed within a period of one year from the date of shipment i.e. 4.1.2007, therefore, the same is not admissible. 3. Before us, it is stated that though the goods were allowed for export on 4.1.2007, but as a consequence to some dispute at customs relating to export concerned, the corresponding shipping bill was not issued by the Department of Customs immediately. The certificate was given on 28.1.2008 i.e. after a lapse of more than a period of one year and after having the shipping bill, the petitioner claimed rebate as per Rule 18 of the Rules of 2002. According to the petitioner, as per the supplementary instructions provided under the notification No. 19/2004/CE(NT), dated 6.9.2004 read with para 8 of Part-V of CBEC's Excise Manual, it was mandatory to furnish shipping bill alongwith the rebate claim, as such, the delay occurred due to non-issuance of shipping bill as in absence of that no rebate could have been claimed by the petitioner. According to learned counsel the rebate claimed was filed within a period of two months from the date of issuance of relevant shipping bill, thus, the rebate should have been awarded by the respondents. The submission advanced is substantiated by a Division Bench judgment of this Court in Gravita India Ltd. v. Union of India, reported in 2016 (334) E.L.T. 321 (Raj.). In the case aforesaid a Division Bench of this Court, while examining the same issue, held as under:- "17. There is no quarrel with proposition that if Statute provided for limitation, it has to be adhered to. What however is being claimed by the petitioner is different. The question which arises in the present case is as to what should be the starting point for computation of this period of one year. We are persuaded to follow the view taken by the Gujarat High Court in Cosmonaut Chemicals, supra, 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. The claimant cannot be asked to tender deficient claim within limitation period and claim cannot be simultaneously treated as not filed till documents furnished, if the manual of supplementary instruction indicating that refund or rebate claim deficient in any manner to be admitted when delay in providing document is attributable to the Department. Where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point for computation of limitation." 4. In light of the judgment given by Division Bench of this Court in Gravita India Ltd. (supra), as per learned counsel appearing on behalf of the petitioner, the starting point for computation of limitation under Section 11-B of the Act of 1944, would have started only from the date when necessary documents to substantiate the claim of refund were furnished to the petitioner. 5. 5. Per contra, Shri Vipul Singhvi, learned counsel appearing on behalf of the respondents, states that as per Section 11-B of the Act of 1944 refund of any duty of excise could have been claimed by making application to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before expiry of one year from the relevant date in such form and manner as may be prescribed and the application should have been accompanied by such documentary or other evidence including the documents referred to in Section 12-A to establish that the amount of duty of excise on such duty was collected or paid by the claimant. The petitioner in the instant matter failed to furnish the application to claim the rebate within a period of one year from the date of shipment i.e. 4.1.2007, hence, the rebate was rightly denied. Learned counsel, while relying upon a judgment of Privy Council in Pakala Narayana Swami v. Emperor, reported in (1939) 41 BOMLR 428, submitted that the language of Section 11-B is very specific, clear and conveying only one meaning, therefore, it is not open for the Court to interpret the provision by taking into consideration the advantages and disadvantages of applying the plain meaning. According to learned counsel, this Court must declare the very conspicuous intention of the legislature i.e. the requirement of submitting application under Section 11-B of the Act of 1944, within a period of one year from the date of shipment. 6. Having considered the arguments advanced, we are of the view that in the case of Gravita India Ltd. (supra) a Division Bench of this Court thrashed the entire issue in detail and the instant matter also deserves to be decided in the terms of the judgment aforesaid. In the case aforesaid it was held that the procedure prescribed by subsidiary legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. The claimant could have not been asked to tender a claim with deficiencies within the limitation period and claim could have not been simultaneously treated as not preferred till documents furnished, if the manual of supplementary instructions indicating that refund or rebate claimed deficient in any manner to be admitted when the delay is attributable to the Department. 7. The claimant could have not been asked to tender a claim with deficiencies within the limitation period and claim could have not been simultaneously treated as not preferred till documents furnished, if the manual of supplementary instructions indicating that refund or rebate claimed deficient in any manner to be admitted when the delay is attributable to the Department. 7. In the case in hand it is not in dispute that the shipping bill itself was delivered to the petitioner after a lapse of one year and the petitioner after having the same filed the application to have rebate at earliest. Even as per Section 11-B of the Act of 1944, refund of any duty of excise could have been claimed by making an application accompanied by such documents or evidence including the documents referred in Section 12-A to establish that the amount of duty of excise was collected or paid by the claimant. In absence of shipping bill it would have not been possible for the claimant to make an application in accordance with law to claim the rebate as per Rule 18 of the Rules of 2002. In view of it, we are of considered opinion that no justification was available with the respondents to reject the claim application without examining its merits. 8. So far as the interpretation of Section 11-B of the Act of 1944 is concerned, no doubt that the golden principle of interpretation, at the first instance, is always required to be applied while interpreting a statute, but in relation to the provision in question it would be appropriate to notice that it mentions the 'date relevant' and further that a claim application can be filed by placing relevant documents alongwith it, as such, the provision is not conveying the simple meaning, as learned counsel appearing on behalf of the respondents want to put forth. 9. In view of whatever stated above, this petition for writ deserves acceptance, hence, is allowed. The orders passed by the original authority, appellate authority and the reviewing authority, rejecting the claim for rebate made by the petitioner, are set aside. The respondent, Assistant Commissioner, Central Excise Division, Chittorgarh, is directed to examine the application submitted by the petitioner to claim refund/rebate afresh on merits in accordance with law. The application is required to be considered and decided by the authority competent within a period of two months from today. The respondent, Assistant Commissioner, Central Excise Division, Chittorgarh, is directed to examine the application submitted by the petitioner to claim refund/rebate afresh on merits in accordance with law. The application is required to be considered and decided by the authority competent within a period of two months from today. 10. No order as to costs.