(arm- V)trrft-ff · 2014-01-01 · • 39—thrgzr (3i 141W—V)ttizi !Irch * +11(1J-11 cl itizr...
Transcript of (arm- V)trrft-ff · 2014-01-01 · • 39—thrgzr (3i 141W—V)ttizi !Irch * +11(1J-11 cl itizr...
• 39—thrgzr (3i141W—V)ttizi !Irch * +11(1J-11 cl itizr 30-11d, !FT 5.4-4,
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th-iVF : File No : V2(32) 47 /Ahd-I/201 c5_1-
371t7 Order- In -Appeal No..AHM-EXCUS-001-APP-060-13-14 ft-4V Date : 18.12.2013 --rtt Th°f Date of Issue
)3ft 3 -rftff 34-Rj-wr (arm- V)trrft -ff Passed by Shri. Anil Kumar, Commissioner (Appeal-V)
Assistant Commissioner Div.-III A'bad-I g-FT 11F 311-47T MP/2492/AC/2013-REB. ft-4- : 11/09/201309/11/2013 7P-d-
Arising out of Order - in -Original No.MP/2492/AC/2013-REB. Dated : 11/09/2013 Issued by Assistant Commr.. Commr., Central Excise, Div. - III Ahmedabad - I..
cif cbi 414 yci kldi Name & Address of the Appellant / Respondent
Aries Dyechem Industries Ahmedabad
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31-1 ci-)) 3111 tif f T T 3irt-q7 ;TR-1-ff t I Any person a aggrieved by this Order-In-Appeal may file an appeal or revision application, as the one may be against such order, to the appropriate authority in the following way :
4iRff i1' 44 N c fftraTur 34-rk-q-9 Revision application to Government of India :
(1) ZT \3041q.-1 c 34-1 -ft-ZITI, 1994 chl urvi qfficr c0 1-0-0:ff URI chi
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: 110001 w,1 1 I (i) A revision application lies to the Under Secretary, to the Govt. of India, Revision Application Unit Ministry of Finance, Department of Revenue, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi - 110 001 under Section 35EE of the CEA 1944 in respect of the following case, governed by first proviso to sub-section (1) of Section-35 ibid :
Tlit TIFF \siq t{11. ct, w51-) f+—R-11- 4Er—d-p-rR Tir 3.1- 1 4)1 -ar f+—* q-I.v4IN ci,fl 4 TIFF ■311c) §`; 14, TIT zur -c.11 c16 17ifir cl-)ITT-F4 zi I -1'47> 4u---FrF vf+--zrr (ii) In case of any loss of goods where the loss occur in transit from a factory to a warehouse or to another factory or from one warehouse to another during the course of processing of the goods in a warehouse or in storage whether in a factory or in a warehouse.
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In case of rebate of duty of excise on goods exported to any couptry or territory outside India of on excisable material used in the manufacture of the goOds which are exported to any country or territory outside India.
Trft r Trffi-9. 1:'+- 1:49-r 7iNc1 01:11-a. TIT 4-1--d-r9 f -T[I-d- f -trr 4 NI 41Iei t.
In case of goods exported outside India export to Nepal or Bhut
duty.
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n, without payment of
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(d) Credit of any duty allowed to be utilized towards payment Of excise duty on final
products under the provisions of this Act or the Rules made there under and such order is passed by the Commissioner (Appeals) on or after, the date appointed under Sec.109 of the Finance (No.2) Act, 1998.
(1) m"--41-?:i \3c-1-11q-1 (311:1) 1-1 311c1c1), 2001 f4Zili 9 -8 NfORJ‘T
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The above application shall be made in duplicate in Form No. A-8 as specified under Rule, 9 of Central Excise (Appeals) Rules, 2001 within 3 months from the date on which the order sought to be appealed against is communicated ands all be accompanied by two copies each of the 010 and Order-In-Appeal. It should also be accompanied by a copy of TR-6 Challan evidencing payment of prescribed fee as prescribed under Section 35-EE of CEA, 1944, under Major Head of Account.
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The revision application shall be accompanied by a fee of Rs.200/- where the amount involved is Rupees One Lac or less and Rs.1,000/- where the amount involved is more
than Rupees One Lac.
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Appeal to Custom, Excise, & Service Tax Appellate Tribunal.
dc-1I''1 31114f4TITI, 1944 4 q-l-RT 35—t/ 31d1 fd:—
Under Section 35B/ 35E of CEA, 1944 an appeal lies to :-
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the special bench of Custom, Excise & Service Tax Appellatei Tribunal of West Block No.2, R.K. Puram, New Delhi-1 in all matters relating to classification valuation and..
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(b) To the west regional bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) at 0-20, New Metal Hospital Compound, Meghani Nagar, Ahmedabad : 380 016. in case of appeals other than as mentioned in para-2(i) (a) above.
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The appeal to the Appellate Tribunal shall be filed in quadruplicate in form EA-3 as prescribed under Rule 6 of Central Excise(Appeal) Rules, 2Q01 and shall be accompanied against (one which at least should be accompanied by a fee of Rs.1,000/-, Rs.5,000/- and Rs.10,000/- where amount of duty / penalty / demand / refund is upto 5 Lac, 5 Lac to 50 Lac and above 50 Lac respectively in the form of crossed bank draft in favour of Asstt. Registar of a branch of any nominate public sector bank of the place where the bench of any nominate public sector bank of the place where the bench of the Tribunal is situated. Application made for grant of stay shall be accompanied by a fee of Rs.500/-.
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In case of the order covers a number of order-in-Original, fee for each O.I.O. should be paid in the aforesaid manner not withstanding the fact that the one appeal to the Appellant Tribunal or the one application to the Central Govt. As the case may be, is filled to avoid scriptoria work if excising Rs. 1 lacs fee of Rs.100/- for each .
(4);--ir/TR--f-TI 31-14124q -r-r 1970 TINT TI -ftRic-f (6) 31:Nrcf — 1 t c1 4 1- f ft f 31t -f17 30. 31T1 L11.
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tct)t (1 4 11 6)11 -TITflP
One copy of application or O.I.O. as the case may be, and the order of the adjournment authority shall a court fee stamp of Rs.6.50 paise as prescribed under scheduled-I item of the court fee Act, 1975 as amended.
3tR- 34-44d- Ti-Fra1 4,1 14-Aui ch f citQl ftait 4 31I 1.1'r F Tr f 31-1Wfih. War \rim' wl -01T1r
m\---41-Er , )ciictpz 3T -Eir-A-zr ( --r411410-) jPr, 1982 14 -ftftd. t
Attention in invited to the rules covering these and other related matter contended in the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982.
(3)
( 5 )
V2(3i)/47/AHD-I/2013
4
ORDER-IN-APPEAL
The present appeal has been filed by M/s. Aies Dye Chem
Industries, Plot No.C-1, 260, Phase-II, GIDC, Vatva, Ahmedabad (hereinafter
referred to as "the appellant") against Order-In-Original No. M /2492/AC/2013-
Reb, dated 11.09.2013 (hereinafter referred to as the "impugne order") passed
by the Assistant Commissioner, Central Excise, Division-I I Ahmedabad-I
(hereinafter referred to as the "adjudicating authority').
2. The Brief facts of the case is that the appellant ha filed the rebate
claim, as detailed below, under Rule 18 of Central Excise Rules 2002 along with
the documents, such as original copy of A.R.E.1, invoice issued under Rule 11, -
self attested copy of shipping Bill, self attested copy of Bill of Lading, self attested
copy of Mate receipt. The details of the claim is as under:
r N Sr
a Pile No Name of
manufacturer
ARE-I details Shipping Bill No Date of
Filing
Date of
Export
mount
of Rebate
Rs.
Cenvat account
debit entry No Port of
Export ARE-
I Date No Date No Date
2 3 4 5 6 7 8 9 10 11 12 13
1 1626
Aries Dye Chem
Inds. 119 21.05.12 8999414 19.05.12 13.06.13 09.06.12 4,37,787/- 202 21.5.12
ICD,
A'had
3. On scrutiny of the documents submitted by tha claimant, it is
observed that the claimant has claimed rebate of Rs.4,37,757/- n respect of duty
paid goods. The claims have been submitted by the appellant after the lapse of
one year from the date of the export of the finished goods and the same is time
barred as per provisions of Section 11 B of the Central Excise Act, 1944.
4. A Show Cause Notice was issued to the appellant for rejection of
the Rebate claim filed under Rule 18 of the Central Excise Rules, 2004, as the
same had been filed after the prescribed time limit of one year from the date of
the goods leaving the appellant's factory premises, as per Section 11 B of the
Central Excise Act, 1944. The Show Cause Notice was adjudicated by the
adjudicating authority vide the impugned order wherein the rebate claim has
been rejected on the grounds of limitation.
5. Being aggrieved with the above impugned Order ttie appellant have
filed an appeal against the impugned order on the following grounds:
(i) The adjudicating authority has not taken any cognizance to
the appellant's reply dated 31-07-2013 to the Show Cause
V2(32)/47/AHD-I/2013
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(ii) The adjudicating authority has overlooked the procedure laid
down for the purpose of rebate claim under Notification
No.19/2004(NT)
(iii) As per the procedure laid down under Notification No.
I9/2004(NT) documents like original and duplicate copy of
ARE 1 and copy of shipping bill with other documents are
required for the purpose of filing the rebate claim. As
documents viz. Original and duplicate copy of ARE I and
shipping bill were not released by Custom authority till
10.06.2013, appellant could not file rebate claim within time
limit prescribed under Section 11 B of Central Excise Act, 1944.
(iv) Though export took place on 09-06-2012, Custom authority
make endorsement on the body of the ARE 1 and shipping
bill on 08-04-2013 and released documents on 10-06-2013.
As circumstances were beyond the control of the appellant
delay of five days in filling of rebate claim may please be
condoned.
6. Personal hearing in the matter was held on 17.12.2013, wherein
Shri Dilip R. Ladva, appeared on behalf of the appellant and reiterated the
submissions made by them in their appeal and requested that their appeal be
allowed.
DISCUSSION AND FINDINGS:
7. I have carefully gone through the facts of the case, appeal
memorandum and submissions made at the time of personal hearing. The issue
to be decided here is whether the rebate claim filed under Rule 18 of the Central
Excise Rules by the appellant can be allowed when the same has been filed
beyond the period of one year as stipulated under Section 11 B of the Central
Excise Act, 1944.
8. I find that in this case, the goods were exported vide ARE-1 No.
119/dated 21.05.2012 and the date of export is 09.06.2012. The ARE-1 copies
were endorsed by the Customs authorities on 08.04.2013. The appellant has
contended that the same was handed over to them on 10.06.2013, though they
have not produced any documentary evidence in support of their contention.
V2(3f)/47/AHD -I/2013
6
within one year i.e by 08.06.2013, from the date of payment of duty. However the
rebate claim was filed on 13.06.2013 i.e. beyond the period of ohe year from the
date of export, as per Section 11 B of the Central Excise Act, 1944.
9. Notification No. 19/2004-Central Excise (N.T.) has been issued
Rule 18 of the Central Excise Rules, 2002. The Cenvat Credit Mules, 2002 have
been made by the Central Government in exercise of powers conferred by
section 37 of the Central Excise Act 1944.
9.1. Section 37: Power of Central Government to make rules. —
(1) The Central Government may make rules to carry into effect the purposes of this Act.
(2) In particular, and without prejudice to the generality of the fdregoing power, such rules may —
(xvi) provide for the grant of a rebate of the duty paid on goods which are e4orted out of India or
shipped for consumption on a voyage to any port outside India including interest thereon;
9.2. Therefore the Notification issued under Rule 18 of the Central
Excise Rules, 2002 is subject to the limitation of Section 37 of the Central Excise
Act, 1944, which is for putting into effect the purpose of the Act and therefore
under Section 37, no provision can be made to go beyond the scope of the
Central Excise Act, 1944 itself.
9.3. The Rebate of duty is covered under Section 11 B
Act, 1944, which states that:
of Central Excise
SECTION 11B. Claim for refund of duty and interest, if any, paid on such duty —
(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 Deputy Commissioner 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 uch 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, o paid by, him and the incidence of such duty and interest, if any, paid on such duty had n t been passed on by him to any other person :
[Explanation. — For the purposes of this section, -
(A) "refund" includes rebate of duty of excise on excisable goods 4ported out of India or on excisable materials used in the manufacture of goods which are eXported out of India;
(B) "relevant date" means, -
V2(32)/47/AHD-I/2013
7
(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 (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;
(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;
(eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof;
(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;
(f) in any other case, the date of payment of duty.
9.4. Therefore Notification No. 19/2004-Central Excise (N.T.) lays down
the procedure to claim Rebate which is all along subjected to provision of Section
11 B of the Central Excise Act, 1944.
10. Further, Hon'ble High Court of Bombay in the case of EVEREST
FLAVOURS LTD. v/s. UNION OF INDIA reported in ELT 2012 (282) ELT 481
(Born.). has held that:
"Rebate - Limitation - Section 118 of Central Excise Act, 1944 specifically comprehends an -4,-1- -,! C.,";,, 4,,4% nn nnndo cwnnrind nr matPrialc acnri in Chair manufacture -
V2(32)/47/AHD-I/2013
8
duty, Rule 18 of Central Excise Rules, 2002 cannot be read independetit of requirement of
limitation prescribed in Section 11B ibid - Mere presentation of an ARE-1 Font) does not constitute
the filing of a valid application for rebate - An application for refund has to by filed, together with
documentary. material as required - A self-attested copy of shipping bill is required to be filed
together with the claim for rebate on duty paid on excisable goods exported - Petitioner filed an
application for rebate on 17-7-2007 which was beyond the period of one year from 12-2-2006 being
the relevant date on which the goods were exported - Where the statute provides a period of
limitation, in Section 11 B ibid for a claim for rebate, the provision has to b complied with as a
mandatory requirement of law. (paras 8, 10, 11, 12J"
10.1 In the same order, the Hon'ble High Court has also observed in
Para 12 as under:
"12.For the aforesaid reasons, we hold that the authorities below were justified in coming to
the conclusion that the petitioner had filed an application for rebate on 17 duly 2007 which was
beyond the period of one year from 12 February 2006 being the relevant datle on which the goods
were exported. Where the statute provides a period of limitation, in the present
case, in Section 11B for a claim for rebate, the provision has to be complied
with as a mandatory requirement of law."
11. Further, in a similar issue, vide Order no. 12614/2013-CX, dated
17.09.2013, in the case of Revision Application filed under Seption 35 EE of the
Central Excise Act, 1944 against Order-in-Appeal No. 296/11(Ahd-
II)CE/CMC/Commr.(A)/Ahd., dated 28-06-2011 passed by Commissioner of Central Excise (Appeals), Ahmedabad-I in respect of M/s Pasupati Industries,
Ahmedabad, the Government has observed as under:
"Applicant has given various reasons for filing rebate claim Offer a stipulated
period of one year. In addition, he contended that delay in filitlg rebate claim is
a procedural lapse and same may be condoned as the stbstantial benefit
cannot be denied to them due to procedural infractions. In this regard, Government
observes that filing of rebate claim within one year is a statutory i .equirement which
is mandatory to be followed. The statutory requirement can be condoned only if there
is such provision under Section 11B. Since there is no provision or condonation of
delay in terms of Section 11B, the rebate claim has to be treated s time barred."
10.2 The Hon'ble CESTAT, South Zonal Bench, Chennai in th • case of Precision
Controls vs. Commissioner of Central Excise, Chennai 2004 ( 76) ELT 147 (Tri.-
Chennai) held as under:
"Tribunal, acting under provisions of Central Excise Act, 1944 has no equitable or
discretionary jurisdiction to allow a rebate claim de hors the limitation provisions of
41
V2(32)/47/AHD4/2013
9
under central Excise Act, 1944 and Customs Act, 1962 have no power to relax
period of limitation under Section 113 Mid and Section 27 ibid and hence powers of
Tribunal too, bong one of the authorities acting under aforesaid Acts, equally
circumscribed in regard to belated claims — Section 113 of Central Excise Act,
1944 — Rule 12 of erstwhile Central excise Act, 1944 — Rule 13 of the Central
Excise Rules, 2002. — Contextually, in the case of Uttam Steel Ltd. also, the
Hon'ble Bombay High Court allowed a belated rebate claim in a writ petition filed by
the assessee. This Tribunal, acting under the provisions of the Central Excise Act,
has no equitable or discretionary jurisdiction to allow any such claim de hors the
limitation provisions of Section 11B."
10.3 Further, it has been held by the Hon'ble Supreme Court in the case of
Collector Land Acquisition Anantnag & Others vs. Ms. Katji & Others reported in 1987
(28) ELT 185 (SC) that when delay is within condonable limit laid down by the
statute, the discretion vested in the authority to condone such delay is to be
exercised following guidelines laid down in the said judgment. But when there is no
such condonable limit and the claim is filed beyond time period prescribed by
statute, then there is no discretion to any authority to extend the time limit."
11.1. The Government of India, vide the above mentioned order has held
that the rebate claim filed after one year's time limit stipulated under Section 11 B
of the Central Excise Act, 1944 read with Rule 18 of Central Excise Rules, 2002
is clearly hit by time limitation clause and cannot be entertained at all.
12. Paragraph 2.4 of the Chapter IX of Central Excise Manual
Supplementary Instructions provides as under:
"2.4. It may not be possible to scrutinize 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 filed). The claim shall be taken as
filed only when all relevant documents are available. In case any documents is not
available 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."
12.1 As per the above instruction, provision has been made that claim
should be accepted even without documents which are not available with
V2(34)/47/AHD-I/2013
10
claim was filed after expiry of the stipulated one year period from the date of
export. The appellant could have filed the claim without documents which are
not available with them, but they have not filed the claim within stipulated time
limit at all, hence, provision of Paragraph 2.4 of, Chapter IX of the Manual
Supplementary Instructions is also not applicable in this case.
13. The time limit of one year from the relevant date i.e. from the date
of export of goods, is prescribed for claiming refund of duty which includes rebate
of duty of excise on excisable goods exported out of India, as pet the explanation
given under the Central Excise Act, 1944. It is a statutory requirlement to file the
rebate claim within one year and the statutory requirement can bie condoned only
if there is such provision under Section 11 B. There is no provision for
condonation of delay in terms of Section 11B and no statutory authority can
traverse the confines of law and grant relief by overlooking the Or of limitation. I
therefore, find no reason to entertain the rebate claim which is barred by
limitation under the provisions of Rule 18 of Central Excise Rulel, 2002 read with
Section 11 B of Central Excise Act, 1944.
14. In view of the above discussions, I find that the adjudicating
authority has rightly rejected the rebate claims and therefore, I plass the following
order:
ORDER
15. I hereby reject the appeal filed by the appellant and uph Id the impugned
order.
(ANIL KUMAR) COMMISSIONER (APPEALS-
CENTRAL EXCISE, AHMEE)ABAD.
Date: /12/2013 ATTESTE
(M. Vyas) Superintendent (Appeals-V) Central Excise, Ahmedabad
By Regd. Post A.D.
To M/s. Aries Dye Chem Industries, Plot No.C-1, 260, Phase-II, GIDC, Vatva, Ahmedabad
V2(32)/47/AI-ID-I/20 13
11
Copy to:
1. The Chief Commissioner, Central Excise, Ahmedabad.
2. The Commissioner of Central Excise, Ahmedabad-I,
3. The Deputy/Asstt. Commr. Of Central Excise, Div-III, Ahmedabad-I
4 The Superintendent (System), Central Excise, H.Q., Ahmedabad-I for
uploading the order on web site.
5 .PA to Commissioner (Appeals-V)
6. Guard File.
a