# M/s Camphor & Allied Products Ltd v. Unionof India & Ors

- **Citation:** (2019) 1 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-03
- **Case number:** Civil Misc. Writ Petition No. 78 of 2018
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-camphor-allied-products-ltd-v-unionof-india-ors-44522
- **Pages:** 12

## Headnote

file rebate claim. General and Special law
- Central Excise Act, 1944: Section 11BCentral Excise Tariff Act, 1985: First
Schedule read with Rule 18 Central
Excise
Rules,
2002;
Central
Excise
Notification
No.
19/2004
dated
06.09.2004 (Clauses (2), 3(b), 3(c)) and;
Central Excise Notification No. 18/2016
dated 01.03.2016. Special law to prevail
over general law.

Notification contains special scheme of
rebate to exporters. It is a self-contained
code. It does not prescribe any limitation
for filing a rebate claim. General period
of limitation provided under Section 11B
of Central Excise Act, does not apply to
such a special case. No time limit to file
rebate claim by exporter.

The petitioner filed claims for rebate of excise
duty more than one year after the actual
shipment of the goods. Adjudicating authority
rejected the claims as barred by time u/s 11B.
The appeals, and further revisions filed against
the orders of the appellateauthority, were also
rejected. Allowing the present petition, the
High Court. Held:- Notification No. 19/2004
provided a special and comprehensive scheme
for
filing
rebate
claims
by
exporters.
Notification No. 19/2004 was a self-contained
code in respect of matters covered under the
Notification. The general provisions in Section
11B of the Central Excise Act, would not apply
while considering the rebate claims covered by
Notification No. 19/2004. No time limit for
filing rebate claims was provided under
Notification No. 19/2004 till its amendment by
Notification No. 18/2016 with effect from
01.03.2016. (Para 34, 35, 36, 37)

Precedent followed: -

## Text

538 INDIAN LAW REPORTS ALLAHABAD SERIES
73(a) of the Act and had not applied his
mind to the nature of objections raised by
the respondent nor he considered the
material produced with reference to
Section 73(b) of the Act. In such a case,
where the applicability of Section 73(a) of
the Act was in dispute, the CEO had not
accepted
the
method
of
valuation
proposed by the respondent, it would have
been proper for the Appellate Authority to
remit the case to the Chief Executive
Officer, to pass a fresh order in
accordance with Section 73(b) of the Act.

36. Accordingly, the writ petition
succeeds in part. While findings of the
Appellate
Authority
regarding
the
assessment made under Section 73(a) of the
Act being illegal are wholly proper and are
thus sustained, the later part of the order
making quantification/ assessment under
Section 73(b) of the Act is found to be premature and is accordingly set-aside. The
matter is remitted to the Chief Executive
Officer, Cantonment Board, Meerut Cantt, to
pass a fresh order, in light of the observations
made above, as expeditiously as possible,
preferably within a period of three months
from today, after affording reasonable
opportunity of hearing to the respondent.

37. The writ petition is accordingly
partly allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2019

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Civil Misc. Writ Petition No. 78 of 2018

M/s Camphor & Allied Products Ltd.
 ...Petitioner
Versus
Unionof India & Ors. ...Respondents
Counsel for the Petitioner:
Sri Nishant Mishra, Sri Kartikeya Narain

Counsel for the Respondents:
A.S.G.I., Sri Ramesh Chandra Shukla, S.C.

A. Interpretation - Period of limitation to
file rebate claim. General and Special law
- Central Excise Act, 1944: Section 11BCentral Excise Tariff Act, 1985: First
Schedule read with Rule 18 Central
Excise
Rules,
2002;
Central
Excise
Notification
No.
19/2004
dated
06.09.2004 (Clauses (2), 3(b), 3(c)) and;
Central Excise Notification No. 18/2016
dated 01.03.2016. Special law to prevail
over general law.

Notification contains special scheme of
rebate to exporters. It is a self-contained
code. It does not prescribe any limitation
for filing a rebate claim. General period
of limitation provided under Section 11B
of Central Excise Act, does not apply to
such a special case. No time limit to file
rebate claim by exporter.

The petitioner filed claims for rebate of excise
duty more than one year after the actual
shipment of the goods. Adjudicating authority
rejected the claims as barred by time u/s 11B.
The appeals, and further revisions filed against
the orders of the appellateauthority, were also
rejected. Allowing the present petition, the
High Court. Held:- Notification No. 19/2004
provided a special and comprehensive scheme
for
filing
rebate
claims
by
exporters.
Notification No. 19/2004 was a self-contained
code in respect of matters covered under the
Notification. The general provisions in Section
11B of the Central Excise Act, would not apply
while considering the rebate claims covered by
Notification No. 19/2004. No time limit for
filing rebate claims was provided under
Notification No. 19/2004 till its amendment by
Notification No. 18/2016 with effect from
01.03.2016. (Para 34, 35, 36, 37)

Precedent followed: -
1. DCCE Vs. Dorcas Market Makers Pvt. Ltd., 2015
(321) ELT 45 (Mad.) (Para 15, 27, 28, 29, 37, 40)
1 All. M/s Camphor & Allied Products Ltd. Vs. Union of India & Ors.
539
2. CCE Vs. Ram Swarup Electricals Ltd., 2007
(217) ELT 12 (All.) (Para 15, 25, 38, 40)

3. JSL Lifestyle Ltd. Vs. UOI, 2015 (326) ELT
265 (P&H) (Para 15, 30, 40)

4. CCE Vs. Raghuvar (India) Ltd., 2000 (118)
ELT 311 (SC) (Para 15, 16, 17, 21, 25, 27, 28,
30, 31, 38, 39, 40)
Precedent distinguished: -
Everest Flavours Ltd. Vs. UOI, 2012 (282) ELT
481 (Bom.) (Para 15, 16, 20, 27, 29, 30, 40)

Writ Petition from order dated 11.10.
2017 by Addl. Sec. GOI (E-4)

(Delivered by Hon'ble Saumitra Dayal
Singh J.)

1. The present writ petition has
been filed against the order dated
11.10.2017 passed by the Additional
Secretary to the Government of India, in a
revision application filed by the petitioner
under Section 35EE of the Central Excise
Act, 1944 (hereinafter referred to as the
'Act'). That revision had been filed against
the order/s-in-appeal dated 16.12.2013
and
21.03.2014
passed
by
the
Commissioner, Central Excise (AppealsI), Kolkata. Those appeals had arisen
from
the
order(s)-in-original
dated
03.09.2013, 16.09.2013 and 29.01.2014.
By those orders-in-original, the claims for
rebate from duty (by the petitioner on
export of Camphor USP) were rejected, as
time barred.

2. The facts giving rise to the
present writ petition are that the petitioner
is a manufacturer of Camphor USP falling
under Chapter sub-heading 29142120 of
the Central Excise Tariff Act, 1985. By
Central Excise Notification No. 19/2004
dated
06.09.2004,
the
Central
Government in exercise of its powers
under Rule 18 of the Central Excise
Rules, 2002 (hereinafter referred to as the
'Rules'),
in
supersession
of
earlier
notifications, granted rebate on the whole
of the duty paid on all excisable goods
falling under the First Schedule to the
Central Excise Tariff Act, 1985, when
exported to any country, other than Nepal
and Bhutan. The said rebate was made
subject to the conditions, limitations and
procedures specified in that notification.
Rule 18 of the Rules read as under:

"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. - For the purposes
of this rule, "export", with its grammatical
variations
and
cognate
expressions,
means taking goods out of India to a
place outside India and includes shipment
of goods as provision or stores for use on
board a ship proceeding to a foreign port
or supplied to a foreign going aircraft."

3. The conditions and limitations for
providing the rebate are contained in
clause (2) of that notification. They read
as below:

"(2) Conditions and limitations :-

(a) that the excisable goods
shall be exported after payment of duty,
directly from a factory or warehouse,
except as otherwise permitted by the
Central Board of Excise and Customs by
a general or special order;
540 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) the excisable goods shall be
exported within six months from the date
on which they were cleared for export
from the factory of manufacture or
warehouse or within such extended period
as the Commissioner of Central Excise
may in any particular case allow;

(c) that the excisable goods
supplied as ship's stores for consumption
on board a vessel bound for any foreign
port are in such quantities as the
Commissioner of Customs at the port of
shipment may consider reasonable;

(d) the rebate claim by filing
electronic declaration shall be allowed
from such place of export and such date,
as may be specified by the Board in this
behalf;

(e) that the market price of the
excisable goods at the time of exportation
is not less than the amount of rebate of
duty claimed;

(f) that the amount of rebate of
duty admissible is not less than five
hundred rupees;

(g) that the rebate of duty paid
on those excisable goods, export of which
is prohibited under any law for the time
being in force, shall not be made."

4. As to the presentation of claim for
rebate to Central Excise, the procedure is
prescribed under clause 3(b) and 3(c) of
that notification. They read as under:

"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 alongwith 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;

(ii) 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,
Maritime Commissioner of Central Excise
shall compare the duplicate copy of
application received from the officer of
customs with the original copy received
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.

3(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 in 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, 1962 (52 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."

5.

Undisputedly,
the
petitioner
exported its final product, namely Camphor
USP to countries other than Nepal and
Bhutan. The disputed transactions are ten
such transactions performed between the
1 All. M/s Camphor & Allied Products Ltd. Vs. Union of India & Ors.
541
period February 2012 to October 2012.
Again,
undisputedly,
the
petitioner
claimed rebate from payment of duty on
such exports beyond one year from the
date of shipment being dispatched. Thus,
the refund claims were made during the
period February 2013 to October 2013,
such that in each case the claim came to
be made more than a year after the actual
shipment of the goods.

6. All ten claims came to be rejected
by
separate
orders
dated
03.09.2013,
16.09.2013 and 29.01.2014, as time barred
under the provisions of Section 11B of the
Act. For ready reference, the relevant extract
of Section 11B of the Act is quoted below:

"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 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 :

... ... ... ... ...

[Explanation.-
For
the
purposes of this section,-

(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

(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 dispatch of goods by the
Post Office concerned to a place outside
India;"

7. The petitioner's appeals against
the aforesaid orders also came to be
rejected. Those orders have been affirmed
by the revising authority by the order
impugned in the present writ petition.

8. Heard Shri Nishant Mishra
assisted by Shri Tanmay Sadh and Shri
Kartikeya Narain, Advocates, for the
petitioner and Shri Ramesh Chandra
Shukla, learned Senior Standing Counsel
for the revenue.

9. Learned counsel for the petitioner
submits, in the first place, the scheme for
grant of rebate from payment of excise
duty was a separate scheme under the
Rules read with Notification no. 19/2004
dated
06.09.2004
distinct
from
the
scheme for levy of excise duty under the
Act. The petitioner did not claim refund
542 INDIAN LAW REPORTS ALLAHABAD SERIES
of excise duty paid by it rather, it made a
separate and distinct claim of rebate.
Section 11B of the Act inter alia
prescribed the period of limitation to
make a claim for refund only. It had no
applicability to a claim for rebate.
Therefore, in is his submission the
provisions of Section 11B of the Act that
provide for refund of duty paid in excess
are not applicable to claims of rebate from
excise duty claimed by the present
petitioner.

10. Alternatively, it has been
submitted, even if the claim of rebate
being claimed is treated at par with a
claim for refund (in view of the language
of Explanation (A) appended to Section
11B of the Act) then, the rebate from
excise duty on goods exported by the
petitioner
was
a
special
beneficial
scheme. Section 11B of the Act has no
applicability in the same.

11. Then, referring specifically to
the method of presentation of claim for
rebate provided under clauses 3(b) and
3(c) of the notification, it has been further
submitted that the Central Government
had provided a special procedure for
making a claim for rebate from payment
of excise duty. It stipulated lodging of that
claim with the designated authority in
original. Moreover, under clause 3(c) of
the notification, that claim had been
permitted and provided to be made by
electronic declaration. While providing
that special procedure, again, the Central
Government did not deem fit to provide
for a period of limitation or to incorporate
the period of limitation provided under
Section 11B of the Act.

12. Rule of limitation of one year
cannot be read into such special procedure
to bar the claim made by the petitioner
within and otherwise reasonable period.
Here, it would be the submission of the
learned counsel for the petitioner that
being money claim, the reasonable period
cannot be assumed to be lesser than three
years as contemplated under the general
rule under the Limitation Act.

13. Then, referring to Notification
No. 18 of 2016 dated 01.03.2016, it has
been
submitted,
later,
the
Central
Government had specifically introduced
the rule of limitation in the scheme of
rebate from excise duty, arising under
Notification
No.
19/2004
dated
06.09.2004. With effect from 01.03.2016,
it provided, such claims be made before
expiry of the period specified under
Section 11B of the Act. Thus, the delegate
of the legislature had, for the first time,
amended the stipulation of limitation
provided under the notification dated
06.09.2004 and consequently introduced a
further condition by way of rule of
limitation to make a claim for rebate.

14. The aforesaid amendment
having
been
made
prospectively,
according to the learned counsel for the
petitioner, the same cannot be read into
the fact situation of the present case. The
claim of the petitioner had arisen about
two years prior to the amendment to that
law. The same was wholly valid and
maintainable and would be governed by
the unamended law.

15. Reliance has been placed on the
decisions of the Supreme Court in the
case of CCE Vs. Raghuvar (India) Ltd.,
2000 9118) ELT 311 (SC), as followed in
CCE Vs. Ram Swarup Electricals Ltd.,
2007 (217) ELT 12 (All.); DCCE Vs.
Dorcas Market Makers Pvt. Ltd., 2015
1 All. M/s Camphor & Allied Products Ltd. Vs. Union of India & Ors.
543
(321) ELT 45 (Mad); and JSL Lifestyle
Ltd. Vs. UOI, 2015 (326) ELT 265
(P&H). Also, great stress has been laid to
distinguish the judgment of a Division
Bench of the Bombay High Court in the
case of Everest Flavours Ltd. Vs. UOI,
2012 (282) ELT 481 (Bom). In that
regard, it has been submitted that the ratio
of the judgment of the Supreme Court in
the case of Raghuvar (India) Ltd.
(supra) contained in paragraphs 14 and
15 of that report had remained from being
considered by the Bombay High Court.
Therefore, that decision does not lay
down the correct law. On the other hand,
stress has been laid on the decisions of the
Madras and Punjab and Haryana High
Courts in the cases of Dorcas Market
Makers Pvt. Ltd (supra) and JSL
Lifestyle Ltd.(supra) noted above, to
submit, those decisions had taken note of
the complete ratio of the decision of the
Supreme Court in the case of Raghuvar
(India) Ltd. (supra) and, therefore, they
lay down the correct law.

16. The reasoning of the revising
authority, insofar as it has followed the
decision of the Bombay High Court in
Everest Flavours Ltd. (supra), has been
assailed as incomplete. The points of
distinction noted by the Madras High
Court and Punjab & Haryana High Court
in their respective decisions, flowing from
the ratio embedded in paragraphs 14 and
15 of the decision of the Supreme Court
in Raghuvar (India) Ltd. has been
completely misread or not appreciated by
the revising authority. Also, it has been
submitted, the revising authority has
otherwise failed to independently consider
the submission advanced by the petitioner
that the rule of limitation contained in
section 11B of the Act could not be
applied to the claim of rebate made by the
petitioner (prior to the amendment), has
not been decided.

17. Opposing the present petition, Shri
Shukla, learned standing counsel for the
revenue submitted, the decision in the case of
Raghuvar (India) Ltd. (supra) is wholly
distinguishable. In that case, the question
involved was with respect to recovery of
MODVAT wrongly availed. The Supreme
Court had the occasion to consider the
provisions of Section 11A of the Act and
Rule 57-I of the old Rules (with respect to
grant of MODVAT). In that context it had
been reasoned that Section 11A of the Act is
not an omnibus provision of limitation for all
or any kind of action taken under the Act or
the Rules but that it would attract only to
cases where duty of excise had not been
levied or paid or had been short levied or
short paid or erroneously refunded. That
position of law was distinguished and held
inapplicable to enforce a recovery of
MODVAT wrongly availed.

18. In that case, it was the
manufacturer who claimed the benefit of
Section 11A of the Act by stating - no
recovery could be made from him beyond
the period of one year limitation under
Section 11A of the Act. The Supreme
Court negated that claim, amongst others,
on
the
reasoning
-
a
recovery
contemplated under Section 11A is
different and distinct from recovery of
MODVAT wrongly claimed. For reaching
that conclusion, the Supreme Court
considered the separate nature of duty
liabilities contemplated under Section
11A of the Act and the MODVAT
scheme enforced by Rule 57A to 57P of
the old Rules.

19. The above position does not
arise in the present case, inasmuch as by
544 INDIAN LAW REPORTS ALLAHABAD SERIES
virtue of Explanation (A) appended to
Section 11B, all claims of rebate from
excise
duty
have
been
specifically
included in the statutory definition of
claims for refund. By virtue of that
statutory inclusion, any distinction that
may otherwise have existed between the
true meaning, purport and scope of a
refund claim and a rebate claim, has been
rendered inconsequential and extraneous.

20. Therefore, in his submission,
under the Act, their do not exist two
separate provisions providing limitation to
file claims for refund and rebate. A claim
of rebate and claim of refund are one and
same for the purpose of Section 11B of
the Act. Consequently, in his submission,
the rule of limitation provided under
Section 11B of the Act would apply with
equal force to a claim of rebate. He has
placed full faith in the decision of the
Bombay High Court in the case of
Everest Flavours Ltd. (supra).

21. Having heard learned counsel for
the parties and having perused the record,
in the first place, it would be fruitful to
consider the ratio of the Supreme Court in
the case of Raghuvar (India) Ltd.
(supra). As noted above, it was a case
where the revenue was seeking to recover
from the manufacturer MODVAT wrongly
availed. While the entitlement to availment
of MODVAT arose to the manufacturer
with effect from 10.03.1987, it availed
MODVAT credit with respect to inputs
purchased
by
it
with
effect
from
01.03.1987. This ultimately gave rise to the
dispute of Rs. 41,872.68/- which the
manufacturer refused to reverse, despite
notice by the revenue. According to the
manufacturer, that demand had been made
beyond of limitation (one year) under
Section 11A of the Act.

22. Upon consideration of the
provisions of Section 11A of the Act as
also Rule 57-I of the Rules, both prior to
the amendment and after the amendment
made on 05.10.1988, the Supreme Court
held - the provisions of Section 11A of
the Act were not an omnibus provision
and that the situation arising before it had
to be dealt with according to the
unamended Rule 57-I of the Rules
because section 11A was the law to
provide for recoveries of excise duty notlevied or not-paid or short-levied or shortpaid while Rule 57-I was the law for
availment
of
MODVAT
credit,
a
completely
separate
or
different
contingency, not covered under section
11A of the Act. Insofar as the Rule 57-I
did not provide for any period of
limitation and did not borrow the rule of
limitation from Section 11A of the Act,
by way of first reason, the Supreme Court
rejected the defence set up by the
manufacturer and held the recovery
sought by the revenue to be within time.

23. However, the above was not
the only reason given the Supreme
Court to reject the defence set up by
the manufacturer. By way of an
alternative
but
equally
binding
reasoning contained in paragraph no.14
of the report, it was held, even if the
first reasoning were not to operate or
be applicable, then, applying the rule -
special law would prevail over a
general law. It was held the MODVAT
scheme was a special scheme while the
rule of limitation contained in Section
11A was a general law. The scheme of
MODVAT was found to be a special
scheme with self-contained procedure,
manner
and
method
for
its
implementation, providing for its own
remedies
to
undo
any
mischief
1 All. M/s Camphor & Allied Products Ltd. Vs. Union of India & Ors.
545
committed by the manufacturer and any
abuses thereof.

24. In such facts the provisions of
the scheme (special law), alone were
found to govern the situation. It was held
- there was no scope to read the
stipulations (of limitation) contained in
the general provision of law (Section 11A
of the Act), in the special law. Then, by
way of third reasoning, it was further
held, in any case, the MODVAT scheme
underwent an amendment on 06.10.1988
whereby period of limitation of six
months was introduced to Rule 57-I. That
amendment being purely prospective in
nature, it was held that it did not apply to
past transactions.

25. The above decision of the
Supreme Court was followed by the
division bench of this Court in the case of
Ram Swarup Electricals Ltd. (supra),
though in that case, the question was
different (from the one involved here),
being whether short availed MODVAT
credit would constitute refund claim and
accordingly be subject to the rule of
limitation contained in Section 11B of the
Act. The division bench, after taking note
of the reasoning of the Supreme Court in
the case of the Raghuvar (India) Ltd.
(supra) in paragraph nos. 13, 14 and 15,
held as below:

"7. In view of the principle laid
down by the Apex Court in Raghuvar
(India) Ltd. (supra) provisions of Section
11A of the Act is not attracted and cannot
be imparted in respect of the Rules
framed for availing of the Modvat, the
same principle would apply for the
purpose of Section 11B of the Act also. In
view of the decision of the Apex Court in
Raghuvar (India) Ltd. (supra) the law laid
down by the Gujarat High Court in the
case of Wipro Ltd. (supra) cannot be said
to be a good law any more. We are,
therefore, of the considered opinion that
provisions of Section 11B of the Act is not
attracted in the case of Modvat which is
governed by Rules 57A to 57P. Further,
during the relevant period no limitation
had been provided for availing of the
Modvat credit and the amendment in Rule
57G prescribing the limit of six months
was introduced on 29th June, 1995 which
has
prospective
effect.
Thus,
the
respondents were within their right to
avail the short fall in the Modvat credit at
any time."

26. Thus, it was held that the claim
of the MODVAT would remain governed
by Rule 57A to Rule 57B of the old Rules
and Section 11B of the Act would have no
application.

27. The Bombay High Court in the
case of Everest Flavours Ltd. (supra)
was considering a case of rebate from
payment
of
duty
under
the
same
notification which falls for consideration
in the present case. Again, an objection
had been taken by the revenue that the
claim was time barred, it having been
filed beyond one year from the relevant
date, The decision of the Supreme Court
in Raghuvar (India) Ltd. (supra) and
the single judge decision of the Madras
High Court in Dorcas Market Makers
Pvt. Ltd (supra) were cited. Plainly, the
division bench of the Bombay High Court
negated the challenge raised on the
reasoning that the claim for rebate was
time barred. It held the reasoning in
Raghuvar (India) Ltd. (supra) was not
applicable to the claim for rebate from
duty made in view of the fact that a claim
for rebate from duty had been brought
546 INDIAN LAW REPORTS ALLAHABAD SERIES
within the purview of Section 11B of the
Act, under Explanation (A) thereto. It was
held, since the application for rebate from
excise duty had been specifically included
within the ambit of refund, therefore, the
ratio in the case of Raghuvar (India)
Ltd. (supra) was inapplicable.

28. Thereafter, the division bench of
the Bombay High Court considered the
ratio of Dorcas Market Makers Pvt. Ltd
(supra) of the Madras High Court and
distinguished it for the reason noted
above. However, it clearly appears (from
plain reading of its decision), that the
second and the third limb of reasoning in
the decision of the Supreme Court in the
case of Raghuvar (India) Ltd. (supra)
had not been relied before the Bombay
High Court. For that reason, it does not
appear to have been considered or dealt
with.

29. On the other hand, the decision
of learned single judge of the Madras
High Court in Dorcas Market Makers
Pvt. Ltd (supra) became a subject matter
on intra-court appeal before that court
wherein division bench decision of the
Bombay High Court in Everest Flavours
Ltd. (supra) was relied by the revenue.
The decision in the case of Dorcas
Market Makers Pvt. Ltd (supra) was
also a case of rebate from excise duty,
claimed under the same notification as is
under consideration in the present case.
The division bench of the Madras High
Court took note of Rule 12 of the old
Rules governing rebate, which provisions
are reflected and are pari materia to Rule
18 of the Rules under consideration in the
present
case.
Also,
the
distinction
between the rebate claimed and a refund
claim with reference to the judgement,
decree or order of the Court had also been
taken note of and relied upon to bring out
a distinction as to the start of period of
limitation for the purpose of Section 11B
of the Act.

30. Further, it had been noted, prior
to introduction of notification dated
06.09.2004,
under
the
pre-existing
notification, there was a time period
prescribed for making a claim. The same
was done away by the notification under
consideration. Therefore, an intendment
of the delegate of the legislature had been
inferred, to not prescribe any period of
limitation to make a rebate claim. That
period was however re-introduced by the
subsequent amendment vide notification
dated 01.03.2016. The decision of the
Bombay
High
Court
was
thus
distinguished. Similar view has been
taken by the Punjab & Haryana High
Court in the case of JSL Lifestyle Ltd.
Vs. UOI (supra) where again the revenue
sought to rely upon the decision of the
Bombay High Court in Everest Flavours
Ltd. (supra). Again, the Punjab &
Haryana High Court considered the ratio
laid down by the Supreme Court in
Raghuvar (India) Ltd. (supra). Everest
Flavours Ltd. (supra) was distinguished
on count of the second and third limb of
the reasoning contained in paragraph nos.
14 and 15 of the decision of the Supreme
Court having not been considered by the
Bombay High Court. It may be a fact that
the special leave petitions filed against the
decision of the Madras and the Bombay
High Courts may have been dismissed.
However, it may not be decisive of the
issue as it is not the case of either party
that either of those special leave petitions
were decided by any detailed order.

31. First, there can be no doubt that
the reasoning of the Supreme Court in the
1 All. M/s Camphor & Allied Products Ltd. Vs. Union of India & Ors.
547
case of Raghuvar (India) Ltd. (supra)
does not apply with all force, inasmuch as
the first reasoning contained in that case
arose on account of a complete difference
between a claim for recovery of duty notlevied or not-paid or short-levied or shortpaid and recovery of MODVAT wrongly
availed. There was no provision under
Section 11A of the Act whereby recovery
for MODVAT wrongly availed could be
considered the same or treated at parity
with duty not-levied or not-paid or shortlevied or short-paid. To that extent, the
decision of the Supreme Court is wholly
distinguishable, in view of the clear
intendment of the statute where under by
virtue of Explanation (A) to section 11B
of the Act, a claim for rebate of duty has
been specifically included in a claim for
refund of duty.

32. However, it still falls for
consideration whether in view of the
further reasoning of the Supreme Court
there exists any special law governing the
claims for rebate from excise duty and
whether the amendment made introduces
the rule of limitation, only prospectively.
Looking into the clear language of the
notification, it appears that in the first
place, the delegate of the legislature i.e.
Central Government, in exercise of the
powers under Rule 18 of the Rules read
with Section 37 of the Act provided that
the claim for rebate from excise duty shall
be subject to the conditions, limitations
and
procedures
specified
in
the
notification itself.

33. The notification, read in its
entirety, does not, in any way or manner
suggest that it adopts the rule of limitation
contained in Section 11B of the Act or
that
the
conditions
and
limitations
imposed under the notifications are in
addition to those contained under the
general provisions of the Act. It is also
not the case of the revenue that other than
the Section 11B of the Act, there existed
any other provision of law as may have
expressed an intendment of the legislature
to restrict the claims for rebate from duty,
in any other manner. In fact, under the
scheme of the Act, the rebate provisions
are not provided for by any Act of
principal legislation but only through
delegate legislation.

34. Even otherwise, the scheme for
rebate under Rule 18 of the Rules read with
Notification
No.
19
of
2004
dated
06.09.2004 is a special law granting rebate
from excise duty to exporters. It is not a
scheme for general rebate (under section
Explanation A to 11B of the Act). The rebate
is not a general rebate from excise duty (that
may be otherwise available under the Act).
The scheme to grant rebate from excise duty
on goods exported by the petitioner was a
special beneficial scheme provided under
Section 37 of the Act read with Rule 18 of
the Rules and notification No. 19 of 2004
dated 06.09.2004, to provide incentive to
manufacturers to export their manufactured
goods. It was a self contained scheme. The
conditions, limitations and procedures for
grant of such rebate were (under the scheme
of the Act) governed especially by the
procedures and conditions stipulated under
the notification dated 06.09.2004. The
Central Government while issuing that
notification, acted on its wisdom and
provided for only such conditions and
limitations as were considered fit and
necessary for the purpose of granting the
rebate.

35. None of the conditions and
limitations provided under the aforesaid
notification were such as may be read to
548 INDIAN LAW REPORTS ALLAHABAD SERIES
contain a stipulation of limitation of one
year from the relevant time or from the
date of shipment etc. for the purpose of
making a claim for rebate. There is no
room to add to those conditions and
limitations
by
reading
the
general
provisions of section 11B of the Act into
it.

36. Looked from that perspective, it
does appear, all the conditions and
limitations the legislature wanted to
introduce for grant of special rebate from
excise duty (in the case of export of
excisable goods), were stipulated in the
notification itself. It was self contained.
Even for the purposes of the presentation
of a claim for rebate, the manner and
mode had been prescribed under clauses
3(b) and 3(c) of the notification alone.
Again there was no suggestion to limit
those claims by the general prescription of
time contained in section 11B of the Act.

37. Further, in that background, the
amendment
notification
is
relevant.
Thereby under Clause 3(b), sub-paragraph
(I), the words "before the expiry of the
period specified in Section 11B of Central
Excise Act, 1944 (1 of 1944)" have been
introduced for the first time. Clearly, that
amendment has been made prospectively
from
01.03.2016
and
there
is
no
intendment either explicit or implied to
make it retrospective. As discussed by the
Madras High Court in Dorcas Market
Makers Pvt. Ltd (supra), with which I
find myself in agreement, the pre-existing
law and the post amendment law would
clearly bring out that the amendment to
the notification in question was wholly
amendatory and not clarificatory.

38. The division bench decision of
this Court in the case of Ram Swarup
Electricals Ltd. (supra) had adopted the
reasoning of the Supreme Court in
Raghuvar (India) Ltd. (supra) in
entirety and no distinction has been made
thereto. To that extent the view of the
Bombay High Court is found not
consistent with that of the division bench
of this Court. For that reason also, it
looses its persuasive value.

39. It is also relevant to note that the
Supreme Court had itself clarified that the
rule of special law prevailing over the
general law may not be ignored even if
that special law be contained in the Rule
i.e. a delegated legislation while the
general law may be found contained in a
principal legislation. To that extent, it is
relevant to extract the observation made
by the Supreme Court in Raghuvar
(India) Ltd. (supra):

"The question as to the relative
nature of the provisions general or
special has to be determined, with
reference to the area and extent of their
application
either
generally
in
all
circumstances or specially in particular
situations and not on the ground that one
is a mere provision in the Act and the
other is a provision in the Rule. We are
not also concerned in this case with any
challenge to the inconsistency of a rule
with any statutory provision in the Act."

40. Thus, in view of the reasoning
offered
by
the
Supreme
Court
in
Raghuvar (India) Ltd. (supra) that
special law even though contained in the
Rule may govern the special situation
covered by it and be not governed by the
general rule of limitation contained in the
principal legislation and in view of the
further reasoning contained in paragraph
no. 15 of that report that the subsequent
1 All. M/s Rohtas Sweets and Fast Foods, Meerut Vs. The Commissioner Commercial Tax, U.P. Lucknow 549
introduction of rule of limitation (by
amendment) would not be clarificatory
but amendatory, the present writ petition
deserves to be allowed. The decision of
the Bombay High Court in Everest
Flavours Ltd. (supra) is found to be
distinguished in view of the reasoning
given above. Thus, I find myself bound
by the view taken by the division bench of
this Court in Ram Swarup Electricals
Ltd. (supra) and in agreement with the
view taken by the Madras High Court in
Dorcas Market Makers Pvt. Ltd.
(supra) as well as the Punjab &
Haryana High Court in JSL Lifestyle
Ltd.(supra).

41. Accordingly, the present writ
petition is allowed. The matter is remitted
to the original authority to pass necessary
order within a period of three months
from today.
--------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

COMMERCIAL TAX REVISION No..255 of 2018

M/S Rohtash Sweets and Fast Foods,
Meerut ...Petitioner
Versus
Commissioner
Commercial
Tax,
U.P.
Lucknow ...Respondents

Counsel for the Petitioner:
Sri Suyash Agarwal, Sri Rakesh Ranjan
Agarwal.

Counsel for the Respondents:
C.S.C..

A. Section 27 U.P. Value Added Tax Act,
2008 read with Rules 45(13)(a) and (b) -
Legal fiction - cannot be extended or
applied beyond the purpose for which it
is created. Deemed assessment in case
the original return is accepted in entirety
or a self-assessment, if a revised return
is accepted, arises only to provide for
payment of tax demand. No assessment
order comes into existence.

B. Power to make regular assessment
u/s 28 is exercisable independent of
Secttion 27. Rule 45(13)(c) does not and
cannot override or restrict the plain
applicability of the provisions of Section
28(1)(a). Subordinate legislation i.e. the
Rules cannot be read so as to override
the statute itself. Rule 45(13)(c) does
not and cannot override or restrict the
plain applicability of the provisions of
S.28(1)(a) and (b) i.e. the principal
legislation. (Para 25)

Assessment u/s 28 has been confirmed in first
appeal as well as by Tribunal. According to
assessee an assessment on deemed basis had
arisen on 31.03.2017, in absence of any prior
notice so as to allow him 15 days' time to
submit his revised return in terms of Rule
45(13)(a), therefore, assessing authority had
no
jurisdiction
for
assessment
u/s
28.
Dismissing the present revision, the High Court

C. The limitation of two years provided
u/s 29(3) is referable only to an order of
assessment made after examination of
records u/s 28 or an order of assessment
on turnover that may have escaped
assessment
u/s
29.
The
period
of
limitation therefore remained unaffected
by proceedings u/s 27. (Para 22)

D. Notice u/s 27 issued within 15 days
before
legal
fiction
of
deemed
assessment arose. Notice was invalid.
S.27 would remain "subject to" the
provisions
of
Section
28.
Regular
assessment to follow (Para 30, 34, 35, 37)

Precedent followed: -
1. Commissioner of Customs and Central
Excise Vs. Hongo India (P) Ltd. and Another,
(2009) 315 ITR 449 (SC) (Para 9, 23)