# SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER, LARGE TAX PAYER UNIT, BENGALURU

- **Citation:** [2022] 9 S.C.R. 709
- **Court:** Supreme Court of India
- **Decided:** 2022-11-29
- **Case number:** Civil Appeal No. 8717 of 2022
- **Bench:** M.R. Shah, M.M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sansera-engineering-limited-v-deputy-commissioner-large-tax-payer-unit-bengaluru-36468
- **Pages:** 22

## Headnote

Central Excise Act, 1944: s.11B - Rebate of duty of excise -
Limitation - Appellant, manufacturer of excisable goods exported
goods on payment of excise duty between August, 2015 and October,
2015 and filed claims for rebate of duty on 10.02.2017 and
14.02.2017 u/r.18 of Central Excise Rules, 2002 - Claims rejected
as barred by time provided u/s.11B of the Act - Challenge against -
Held: As per explanation (A) to s.11B, 'refund' includes rebate of
duty of excise - Therefore, s.11B shall be applicable with respect to
claim for rebate of duty also - As per s.11B(1) of the Act, any person
claiming refund of any duty of excise has to make an application
for refund of such duty to the appropriate authority before the expiry
of one year from the relevant date - Since application for rebate of
duty is governed by s.11B of the Act, it has to be made before the
expiry of one year from the "relevant date" and in such form and
manner as may be prescribed - The form and manner are prescribed
in notification dated 6.9.2004 - Merely because in r.18 of the 2002
Rules, which is an enabling provision for grant of rebate of duty,
there is no reference to s.11B of the Act and/or in notification dated
6.9.2004 issued in exercise of powers conferred by r.18, there is no
reference to the applicability of s.11B of the Act, it cannot be said
that the provision contained in the parent statute, namely, s.11B of
the Act shall not be applicable, which otherwise shall be applicable
in respect of the claim of rebate of duty - s.11B of the Act is a
substantive provision in the parent statute and r.18 of the 2002 rules
and notification can be said to be a subordinate legislation -
Subordinate legislation which is in aid of the parent statute has to
be read in harmony with the parent statute - Subordinate legislation
cannot be interpreted in such a manner that parent statute may
become otiose or nugatory - In the instant case, respective claims
[2022] 9 S.C.R. 709
709
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were beyond the period of limitation of one year from the relevant
date and were rightly rejected by the appropriate authority.
Dismissing the appeal, the Court
HELD: 1. On a fair reading of Section 11B of the Act, it can
safely be said that Section 11B of the Act shall be applicable with
respect to claim for rebate of duty also. As per Explanation (A) to
Section 11B, "refund" includes "rebate of duty" of excise. As
per Section 11B(1) of the Act, any person claiming refund of any
duty of excise (including the rebate of duty as defined in
Explanation (A) to Section 11B of the Act) has to make an
application for refund of such duty to the appropriate authority
before the expiry of one year from the relevant date and only in
the form and manner as may be prescribed. The "relevant date"
is defined under Explanation (B) to Section 11B of the Act, which
means 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 goods..... Thus, the "relevant date" is relatable
to the goods exported. Therefore, the application for rebate of
duty shall be governed by Section 11B of the Act and therefore
shall have to be made before the expiry of one year from the
"relevant date" and in such form and manner as may be
prescribed. The form and manner are prescribed in the notification
dated 6.9.2004. Merely because in Rule 18 of the 2002 Rules,
which is an enabling provision for grant of rebate of duty, there is
no reference to Section 11B of the Act and/or in the notification
dated 6.9.2004 issued in exercise of powers conferred by Rule
18, there is no reference to the applicability of Section 11B of the
Act, it cannot be said that the provision contained in the parent
statute, namely, Section 11B of the Act shall not be applicable,
which otherwise shall be applicable in respect of the claim of rebate
of duty. [Para 9]

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SANSERA ENGINEERING LIMITED
v.
DEPUTY COMMISSIONER, LARGE TAX PAYER UNIT,
BENGALURU
Civil Appeal No. 8717 of 2022
NOVEMBER 29, 2022
[M.R. SHAH AND M.M. SUNDRESH, JJ.]
Central Excise Act, 1944: s.11B - Rebate of duty of excise -
Limitation - Appellant, manufacturer of excisable goods exported
goods on payment of excise duty between August, 2015 and October,
2015 and filed claims for rebate of duty on 10.02.2017 and
14.02.2017 u/r.18 of Central Excise Rules, 2002 - Claims rejected
as barred by time provided u/s.11B of the Act - Challenge against -
Held: As per explanation (A) to s.11B, 'refund' includes rebate of
duty of excise - Therefore, s.11B shall be applicable with respect to
claim for rebate of duty also - As per s.11B(1) of the Act, any person
claiming refund of any duty of excise has to make an application
for refund of such duty to the appropriate authority before the expiry
of one year from the relevant date - Since application for rebate of
duty is governed by s.11B of the Act, it has to be made before the
expiry of one year from the "relevant date" and in such form and
manner as may be prescribed - The form and manner are prescribed
in notification dated 6.9.2004 - Merely because in r.18 of the 2002
Rules, which is an enabling provision for grant of rebate of duty,
there is no reference to s.11B of the Act and/or in notification dated
6.9.2004 issued in exercise of powers conferred by r.18, there is no
reference to the applicability of s.11B of the Act, it cannot be said
that the provision contained in the parent statute, namely, s.11B of
the Act shall not be applicable, which otherwise shall be applicable
in respect of the claim of rebate of duty - s.11B of the Act is a
substantive provision in the parent statute and r.18 of the 2002 rules
and notification can be said to be a subordinate legislation -
Subordinate legislation which is in aid of the parent statute has to
be read in harmony with the parent statute - Subordinate legislation
cannot be interpreted in such a manner that parent statute may
become otiose or nugatory - In the instant case, respective claims
[2022] 9 S.C.R. 709
709
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were beyond the period of limitation of one year from the relevant
date and were rightly rejected by the appropriate authority.
Dismissing the appeal, the Court
HELD: 1. On a fair reading of Section 11B of the Act, it can
safely be said that Section 11B of the Act shall be applicable with
respect to claim for rebate of duty also. As per Explanation (A) to
Section 11B, "refund" includes "rebate of duty" of excise. As
per Section 11B(1) of the Act, any person claiming refund of any
duty of excise (including the rebate of duty as defined in
Explanation (A) to Section 11B of the Act) has to make an
application for refund of such duty to the appropriate authority
before the expiry of one year from the relevant date and only in
the form and manner as may be prescribed. The "relevant date"
is defined under Explanation (B) to Section 11B of the Act, which
means 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 goods..... Thus, the "relevant date" is relatable
to the goods exported. Therefore, the application for rebate of
duty shall be governed by Section 11B of the Act and therefore
shall have to be made before the expiry of one year from the
"relevant date" and in such form and manner as may be
prescribed. The form and manner are prescribed in the notification
dated 6.9.2004. Merely because in Rule 18 of the 2002 Rules,
which is an enabling provision for grant of rebate of duty, there is
no reference to Section 11B of the Act and/or in the notification
dated 6.9.2004 issued in exercise of powers conferred by Rule
18, there is no reference to the applicability of Section 11B of the
Act, it cannot be said that the provision contained in the parent
statute, namely, Section 11B of the Act shall not be applicable,
which otherwise shall be applicable in respect of the claim of rebate
of duty. [Para 9][723-D-H; 724-A]
2. At this stage, it is to be noted that Section 11B of the Act
is a substantive provision in the parent statute and Rule 18 of
the 2002 Rules and notification dated 6.9.2004 can be said to be
a subordinate legislation. The subordinate legislation cannot
override the parent statute. Subordinate legislation can always
be in aid of the parent statute. At the cost of repetition, it is
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observed that subordinate legislation cannot override the parent
statute. Subordinate legislation which is in aid of the parent statute
has to be read in harmony with the parent statute. Subordinate
legislation cannot be interpreted in such a manner that parent
statute may become otiose or nugatory. If the submission on behalf
of the appellant that as there is no mention/reference to Section
11B of the Act either in Rule 18 or in the notification dated
6.9.2004 and therefore the period of limitation prescribed under
Section 11B of the Act shall not be applicable with respect to
claim for rebate of duty is accepted, in that case, the substantive
provision - Section 11B of the Act would become otiose,
redundant and/or nugatory. If the submission on behalf of the
appellant is accepted, in that case, there shall not be any period
of limitation for making an application for rebate of duty. Even
the submission on behalf of the appellant that in such a case the
claim has to be made within a reasonable time cannot be accepted.
When the statute specifically prescribes the period of limitation,
it has to be adhered to. [Para 10][724-B-E]
3. While making claim for rebate of duty under Rule18 of
the Central Excise Rules, 2002, the period of limitation prescribed
under Section 11B of the Central Excise Act, 1944 shall have to
be applied and applicable. In the present case, as the respective
claims were beyond the period of limitation of one year from the
relevant date, the same are rightly rejected by the appropriate
authority and the same are rightly confirmed by the High Court.
There is no reason to interfere with the impugned judgment and
order passed by the High Court. [Para 15][730-E-F]
Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC
536 : [1996] 10 Suppl. SCR 585; Union of India v.
Uttam Steel Limited (2015) 13 SCC 209 : [2015] 4
SCR 770 - relied on.
Collector of Central Excise, Jaipur v. Raghuvar (India)
Limited (2000) 5 SCC 299 : [2000] 1 Suppl. SCR 236
- held inapplicable.
Everest Flavours Ltd. v. Union of India 2012 (282) ELT
481 - approved.
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,
LARGE TAX PAYER UNIT, BENGALURU
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Cosmonaut Chemicals v. Union of India 2009 (233)
ELT 46 (Gujarat) - referred to.
Hyundai Motors India Limited v. Department of Revenue
2017 (355) ELT 342 (Madras); JSL Lifestyle Ltd. v.
Union of India 2015 SCC OnLine P&H 13023 : 2015
(326) ELT 265 (P&H); Gravita India Ltd. v. Union of
India 2016 (334) ELT 321 (Rajasthan); Camphor and
Allied Products Ltd. v. Union of India 2019 SCC OnLine
All 4705 : 2019 (368) ELT 865 (Allahabad); Deputy
Commissioner of Central Excise v. M/s Dorcas Market
Makers Pvt. Ltd. 2015 SCC OnLine Mad 8492 : 2015
(321) ELT 45(Madras) - disapproved.
Case Law Reference
[2000] 1 Suppl. SCR 236
held inapplicable Para 3 (viii)
[2015] 4 SCR 770
relied on
Para 3.2
[1996] 10 Suppl. SCR 585
relied on
Para 4.1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8717
of 2022.
From the Judgment and Order dated 23.07.2021 of the High Court
of Karnataka at Bengaluru in Writ Appeal No. 249 of 2020.
Arvind P. Datar, Harish Bindumadhavan, Pawanshree Agrawal,
Advs. for the Appellant.
Siddhant Kohli, Shyam Gopal, Ms. Chinmayee Chandra, Ms.
Suhasini Sen, Annirudh Sharma, Mukesh Kumar Maroria, Advs. for the
Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 23.07.2021 passed by the High Court of Karnataka at
Bengaluru in Writ Appeal No. 249/2020, whereby the Division Bench of
the High Court has dismissed the said appeal preferred by the appellant
herein and has confirmed the common judgment and order dated
22.11.2019 passed by the learned Single Judge dismissing the writ
petitions, upholding the order passed by the respondent rejecting the
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claim of the appellant for rebate on the ground that the claim was barred
by time/limitation prescribed under Section 11B of the Central Excise
Act, 1944 (hereinafter referred to as the 'Act'), the original writ
petitioner/appellant herein has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the appellant herein - M/s Sansera Engineering Limited is a
manufacturer of excisable goods. It exported goods on payment of excise
duty between August, 2015 and October, 2015 and filed claims for rebate
of duty paid on the goods exported on 10.02.2017 to the tune of
Rs. 29,47,996/- and Rs. 42,27,928/- under Rule 18 of Central Excise
Rules, 2002 (hereinafter referred to as the '2002 Rules') in respect of
these exports. Subsequently on 14.02.2017, for the period October 2015
to March 2016, the appellant claimed rebate of Rs. 1,47,27,766/-.
2.1 The original authority rejected the above-mentioned rebate
claims as barred by time prescribed under Section 11B of the Act vide
three different Orders-in-Original. Aggrieved by the respective Ordersin-Original rejected the respective claims as barred by time prescribed
under Section 11B of the Act, the appellant preferred writ petitions before
the learned Single Judge. The learned Single Judge vide common order
dated 22.11.2019 dismissed the said writ petitions holding that the claims
for rebate were made beyond the period of one year prescribed under
Section 11B of the Act. The judgment and order passed by the learned
Single Judge has been confirmed by the Division Bench of the High
Court by the impugned judgment and order in Writ Appeal No. 249/
2020. Hence, the present appeal.
3. Shri Arvind P. Datar, learned Senior Advocate appearing on
behalf of the appellant has made the following contentions in support of
his submission that for rebate claim, the period prescribed under Section
11B of the Act shall not be applicable:
i) that the grant of rebate of duty paid on excisable goods or duty
paid as provided under Rule 18 of the 2002 Rules is different than
that of refund of duty entitled under Section 11B of the Act;
ii) that the rebate of duty is on export of the goods and is in the
form of an incentive and on furnishing the form R within six months
from the date of export, the exporter is entitled to the rebate of
duty on fulfilling the relevant conditions as mentioned in the
notification No. 19/2004 dated 6.9.2004;
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,
LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]
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iii) that neither Rule 18 nor notification dated 6.9.2004 specifically
provided for the applicability of Section 11B of the Act for the
period between 2000 to 2016;
iv) that by notification dated 1.3.2016, notification dated 6.9.2004
came to be amended under heading "(3) Procedures" and the
words "before the expiry of the period specified in Section 11B of
the Act" came to be inserted. Therefore, a conscious decision
was taken that for the period between 2000 to 2016, the period
prescribed under Section 11B of the Act shall not be applicable;
v) that in absence of specific provision either in Rule 18 or in
notification dated 6.9.2004 which came to be issued in exercise
of powers under Section 37 of the Act specifically making Section
11B of the Act applicable which provides for the limitation to make
an application within six months/one year applicable, subject to
fulfilling of all conditions mentioned in the notification dated
6.9.2004, the exporter shall be entitled to the rebate of duty paid
on excisable goods exported;
vi) that as per notification dated 6.9.2004 on fulfilling of such
procedure and the conditions as specified in the notification, there
shall be granted rebate of the whole of the duty paid on the excisable
goods falling under the First Schedule to the Central Excise Tariff
Act, 1985 exported to any country other than Nepal and Bhutan.
As it was found that the exporters were causing great hardship in
getting the remittance certificates within six months, a conscious
decision was taken at the time when Rule 18 of the 2002 Rules
was enacted and when notification dated 6.9.2004 was issued
excluding the applicability of Section 11B. As subsequently the
period of six months was increased to one year, it appears that
thereafter vide notification dated 1.3.2016, again the applicability
of Section 11B of the Act was introduced;
vii) that there is a vast difference and distinction between the
refund of duty and the rebate claim; and
viii) that as Rule 18 is a special provision for the grant of rebate of
duty, general provision of Section 11B of the Act which is for
refund of duty shall not be applicable. Reliance is placed on the
decision of this Court in the case of Collector of Central Excise,
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Jaipur v. Raghuvar (India) Limited, (2000) 5 SCC 299 =
2000 (118) ELT 311 (SC).
3.1 Shri Arvind P. Datar, learned Senior Advocate appearing on
behalf of the appellant has heavily relied upon the observations made in
paragraphs 13, 14 & 17 of the decision in the case of Raghuvar (India)
Limited (supra), in support of his submission that Section 11B of the
Act shall not be applicable while considering the claim for rebate of
duty.
Shri Datar, learned Senior Advocate has also relied upon the
following decisions of the High Courts of Madras, Allahabad, Punjab &
Haryana and Rajasthan taking the view, after following the decision of
this Court in the case of Raghuvar (India) Limited (supra), that the
claim for rebate of duty under Rule 18 of the 2002 Rules is different and
distinct than the claim for refund under Section 11B of the Act and
therefore the limitation prescribed under Section 11B of the Act shall not
be applicable with respect to claim for rebate of duty paid:
1. Deputy Commissioner of Central Excise v. M/s Dorcas
Market Makers Pvt. Ltd., 2015 SCC OnLine Mad 8492 :
2015 (321) ELT 45(Madras);
2. Camphor and Allied Products Ltd. v. Union of India, 2019
SCC OnLine All 4705 : 2019 (368) ELT 865 (Allahabad);
3. JSL Lifestyle Ltd. v. Union of India, 2015 SCC OnLine
P&H 13023 : 2015 (326) ELT 265 (P&H) (paragraphs
14,15,16 & 17); and
4. Gravita India Ltd. v. Union of India, 2016 (334) ELT 321
(Rajasthan) (Paragraphs 12, 14 & 16).
3.2 Shri Arvind P. Datar, Learned Senior Advocate appearing on
behalf of the appellant has further submitted that the decision of this
Court in the case of Union of India v. Uttam Steel Limited, (2015) 13
SCC 209 = 2015 (319) ELT 598 (SC) is distinguishable and shall not
be applicable while considering the claim for rebate of duty payable
under Rule 18 r/w notification dated 6.9.2004. It is submitted that in the
case before this Court, this Court was considering Rule 12 of the 2002
Rules, which subsequently came to be deleted by insertion of Rule 18.
3.3 Learned senior counsel appearing on behalf of the appellant
has also relied upon the decision of the Gujarat High Court in the case of
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,
LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]
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Cosmonaut Chemicals v. Union of India, 2009 (233) ELT 46
(Gujarat) in support of his submission that as observed and held by the
Gujarat High Court mitigating circumstances and when the assessee is
not in a position to get the necessary documents within the prescribed
period of limitation, the refund under Section 11B of the Act cannot be
denied. It is submitted that it is observed and held by the Gujarat High
Court in the aforesaid decision that any procedure prescribed by a
subordinate legislation has to be in aid of justice and procedural
requirements cannot be read so as to defeat the cause of justice. It is
submitted that applying the same to the rebate claim, many a times the
exporters were facing the difficulty in getting the requisite remittance
certificates and therefore in such a situation the exporter who has in
fact exported the goods and earned the foreign remittance cannot be
denied the rebate claim.
3.4 Shri Arvind P. Datar, learned Senior Advocate appearing on
behalf of the appellant has submitted that the object and purpose of the
rebate of duty on export of goods can be termed as "incentive" to boost
the export and earn foreign remittance. It is submitted that therefore if
such a claim for rebate of duty is denied despite earning foreign remittance
on the goods exported on such technical grounds, it may defeat the object
and purpose for grant of rebate.
3.5 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeal.
4. The present appeal is vehemently opposed by Shri Siddhant
Kohli, learned Advocate appearing on behalf of the revenue.
4.1 It is vehemently submitted by the learned counsel appearing
on behalf of the revenue that as such the issue involved in the present
case is squarely covered by the decision of this Court in the case of
Uttam Steel Ltd. (supra). It is submitted that in the case of Uttam
Steel Ltd. (supra), it is specifically observed and held by this Court that
the period of limitation prescribed under Section11B of the Act shall be
applicable with respect to rebate of duty. It is submitted that after
considering the decision of this Court in the case of Mafatlal Industries
Ltd. v. Union of India, (1997) 5 SCC 536 = 1997 (89) ELT 247(SC),
it is observed and held that the claim for rebate can only be made under
Section 11B of the Act within the period of limitation stated therefor.
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4.2 It is further submitted that the decision of this Court in the
case of Raghuvar (India) Ltd. (supra), which has been relied upon on
behalf of the appellant, shall not be applicable at all and/or the same shall
not be of any assistance to the appellant. It is submitted that in the case
before this Court, this Court was considering Section 11A of the Act,
vis-à-vis Rule 57-I. It is submitted that as it was found that Section 11A
of the Act is a general provision for recovery of duties not levied or not
paid or short-levied or short-paid or erroneously refunded, the same shall
not be made applicable with respect to recovery of credit wrongly availed
of or utilized in an irregular manner under Rule 57-I. It is submitted that
there is a vast difference and distinction between Section 11A and Section
11B of the Act. It is submitted that as per Explanation (A) to Section
11B of the Act, for the purpose of Section 11B, "refund" includes rebate
of duty of excise... It is submitted that therefore the period of limitation
of one year prescribed under Section 11B of the Act shall be applicable
with respect to the rebate of duty.
4.3 It is further submitted that as per Section 11B (1) of the Act,
an application for rebate of duty has to be made before the expiry of one
year from the "relevant date". It is submitted that as per Explanation
(B) to Section 11B of the Act, "relevant date" means in the case of
goods exported out of India where a refund of excide 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. It is submitted that
therefore in Section 11B of the Act, there is a specific reference to the
rebate of duty and such claim of rebate of duty shall have to be made
before the expiry of one year from the relevant date. It is submitted that
therefore the period of limitation prescribed under Section 11B of the
Act shall be applicable with respect to claim for rebate of duty also.
4.4 It is further submitted by the learned counsel appearing on
behalf of the revenue that Section 11B of the Act can be said to be a
parent statute and Rule 18 and notification dated 6.9.2004 can be said to
be a subordinate legislation. Notification dated 6.9.2004 which has been
issued in exercise of powers under Section 37 of the Act provides for
"procedure". It is submitted that as per Section 37(xxiii) of the Act, the
Central Government may make rules to specify the form and manner in
which application for refund shall be made under Section 11B of the
Act. It is submitted that in exercise of such powers, notification dated
6.9.2004 has been issued in exercise of powers conferred under Rule 18
of the 2002 Rules.
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,
LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]
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4.5 It is further submitted that Rule 18 cannot be read in isolation.
It is further submitted that Rule 18 being subordinate legislation cannot
override the main statute. It is submitted that notification dated 6.9.2004
cannot be read de hors the statute and Section 11B of the Act.
4.6 It is further submitted that the rebate of duty is an export
incentive benefit granted under the subordinate legislation and any such
benefit has to be governed by the statute.
4.7 It is further submitted by the learned counsel appearing on
behalf of the revenue that the decision of this Court in the case of
Raghuvar (India) Ltd. (supra), which has been relied upon by the
Allahabad High Court in the case of Camphor & Allied Products Ltd.
(supra), shall not be applicable to the facts of the case on hand, while
considering the rebate claim. It is submitted that the question involved in
the case of Raghuvar (India) Ltd. (supra) was with respect to recovery
of Modvat credit wrongly availed of. In the said case, it was the
manufacturer who claimed the benefit of Section 11A of the Act by
stating that no recovery could be made from him during the period of
limitation of one year under Section 11A of the Act. It is submitted that
this Court negated the said claim on the reasoning that recovery
contemplated under Section 11A of the Act is different and distinct from
recovery of Modvat wrongly claimed. It is submitted that for reaching
that conclusion this Court considered the separate nature of duties
contemplated under Section 11A of the Act and the Modvat Scheme
envisaged by Rule 57A to 57P of the Rules prevalent at the relevant
time. It is submitted that in the present case the rebate claim shall be
governed by Section 11B of the Act. It is submitted that by virtue of
Explanation (A) appended to Section 11B of the Act, the claims of rebate
of excise duty have been specifically included in the statutory definition
of claims for refund.
4.8 Learned counsel appearing on behalf of the revenue has also
relied upon the subsequent decision of the Madras High Court in the
case of Hyundai Motors India Limited v. Department of Revenue,
2017 (355) ELT 342 (Madras) (paras 24 & 25) as well as the decision
of the Bombay High Court in the case of Everest Flavours Ltd. v.
Union of India, 2012 (282) ELT 481 (Bombay) (paras 10,11 &
12).
4.9 Learned counsel appearing on behalf of the Revenue has
further submitted that if the submission on behalf of the appellant that
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the period of limitation of one year prescribed under Section 11B of the
Act shall not be applicable with respect to claim for rebate is accepted,
in that case, there shall not be any limitation at all and at any time, exporter
can make an application for rebate claim. It is submitted that therefore
Rule 18 and notification dated 6.9.2004 are to be read harmoniously
with the parent statute - Section 11B of the Act.
4.10 Making above submissions and relying upon the decision of
this Court in the case of Uttam Steel Ltd. (supra) and the decision of
the Madras High Court in the case of Hyundai Motors India Ltd.
(supra) and the decision of the Bombay High Court in the case of
Everest Flavours Ltd. (supra), it is prayed to dismiss the present appeal.
5. In rejoinder, Shri Arvind P. Datar, learned Senior Advocate
appearing on behalf of the appellant has submitted that if the contention
on behalf of the appellant that the period of limitation of one year
prescribed under Section 11B of the Act shall not be applicable with
respect to rebate claim is accepted, in that case also, the exporter has to
make an application within a reasonable time.
6. We have heard Shri Arvind P. Datar, learned Senior Advocate
appearing on behalf of the appellant and Shri Siddhant Kohli, learned
Advocate appearing on behalf of the Revenue at length.
The short question which is posed for consideration of this Court
is, "whether the claim for rebate of duty provided under Rule 18 of the
Central Excise Rules, 2002, the period of limitation prescribed under
Section 11B of the Central Excise Act, 1994 shall be applicable or not?
7. It is the case on behalf of the appellant that as in Rule 18 of the
2002 Rules and notification dated 6.9.2004, there is no mention to the
applicability of Section 11B of the Act and that the claim for rebate of
duty under Rule 18 is different and distinct than that of the claim for
refund of duty under Section 11B of the Act, the period of limitation
prescribed under Section 11B of the Act shall not be applicable, while
considering the claim for rebate of duty under Rule 18 of the 2002 Rules.
8. While considering the aforesaid issue, first of all, relevant
provisions of Section 11B of the Act are required to be referred to and
considered. Section 11B of the Act is as under:
"11-B. Claim for refund of [duty and interest, if any, paid on
such duty].- (1) Any person claiming refund of any [duty of
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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
Provided that where an application for refund has been made
before the commencement of the Central Excises and Customs
Laws (Amendment) Act, 1991 (40 of 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) as 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.
[* * *]
[(2) If, on receipt of any such application, the
[Assistant 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-
(a) 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) unspent advance deposits lying in balance in the applicant's
account current maintained with the [Principal Commissioner of
Central Excise or Commissioner of Central Excise];
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(c) refund of credit of duty paid on excisable goods used as inputs
in accordance with the rules made, or any notification issued, under
this Act;
(d) the [duty of excise and interest, if any paid on such duty] paid
by the manufacturer, if he had not passed on the incidence of
such [duty and interest, if any, paid on such duty] to any other
person;
(e) the [duty of excise and interest, if any paid on such duty]
borne by the buyer, if he had not passed on the incidence of
such [duty and interest, if any, paid on such duty] to any other
person;
(f) the [duty of excise and interest, if any paid on such duty] borne
by any other such class of applicants as the Central Government
may, by notification in the Official Gazette, specify:
Provided further that no notification under clause (f) of the first
proviso shall be issued unless in the opinion of the Central
Government the incidence of [duty and interest, if any, paid on
such duty] has not been passed on by the persons concerned to
any other person.
(3) Notwithstanding anything to the contrary contained in any
judgment, decree, order or direction of the Appellate Tribunal or
any Court or in any other provision of this Act or the rules made
thereunder or any other law for the time being in force, no refund
shall be made except as provided in sub-section (2).
(4) Every notification under clause (f) of the first proviso to subsection (2) shall be laid before each House of Parliament, if it is
sitting, as soon as may be after the issue of the notification, and, if
it is not sitting, within seven days of its reassembly, and the Central
Government shall seek the approval of Parliament to the notification
by a resolution moved within a period of fifteen days beginning
with the day on which the notification is so laid before the House
of the People and if Parliament makes any modification in the
notification or directs that the notification should cease to have
effect, the notification shall thereafter have effect only in such
modified form or be of no effect, as the case may be, but without
prejudice to the validity of anything previously done thereunder.
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(5) For the removal of doubts, it is hereby declared that any
notification issued under clause (f) of the first proviso to subsection (2), including any such notification approved or modified
under sub-section (4), may be rescinded by the Central
Government at any time by notification in the Official Gazette.]
[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 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
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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 thereunder, 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. On a fair reading of Section 11B of the Act, it can safely be
said that Section 11B of the Act shall be applicable with respect to claim
for rebate of duty also. As per Explanation (A) to Section 11B, "refund"
includes "rebate of duty" of excise. As per Section 11B(1) of the Act,
any person claiming refund of any duty of excise (including the rebate of
duty as defined in Explanation (A) to Section 11B of the Act) has to
make an application for refund of such duty to the appropriate
authority before the expiry of one year from the relevant date
and only in the form and manner as may be prescribed. The "relevant
date" is defined under Explanation (B) to Section 11B of the Act, which
means 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 goods.....
Thus, the "relevant date" is relatable to the goods exported. Therefore,
the application for rebate of duty shall be governed by Section 11B of
the Act and therefore shall have to be made before the expiry of one
year from the "relevant date" and in such form and manner as may be
prescribed. The form and manner are prescribed in the notification dated
6.9.2004. Merely because in Rule 18 of the 2002 Rules, which is an
enabling provision for grant of rebate of duty, there is no reference to
Section 11B of the Act and/or in the notification dated 6.9.2004 issued in
exercise of powers conferred by Rule 18, there is no reference to the
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applicability of Section 11B of the Act, it cannot be said that the provision
contained in the parent statute, namely, Section 11B of the Act shall not
be applicable, which otherwise as observed hereinabove shall be
applicable in respect of the claim of rebate of duty.
10. At this stage, it is to be noted that Section 11B of the Act is a
substantive provision in the parent statute and Rule 18 of the 2002 Rules
and notification dated 6.9.2004 can be said to be a subordinate legislation.
The subordinate legislation cannot override the parent statute. Subordinate
legislation can always be in aid of the parent statute. At the cost of
repetition, it is observed that subordinate legislation cannot override the
parent statute. Subordinate legislation which is in aid of the parent statute
has to be read in harmony with the parent statute. Subordinate legislation
cannot be interpreted in such a manner that parent statute may become
otiose or nugatory. If the submission on behalf of the appellant that as
there is no mention/reference to Section 11B of the Act either in Rule 18
or in the notification dated 6.9.2004 and therefore the period of limitation
prescribed under Section 11B of the Act shall not be applicable with
respect to claim for rebate of duty is accepted, in that case, the substantive
provision - Section 11B of the Act would become otiose, redundant and/
or nugatory. If the submission on behalf of the appellant is accepted, in
that case, there shall not be any period of limitation for making an
application for rebate of duty. Even the submission on behalf of the
appellant that in such a case the claim has to be made within a reasonable
time cannot be accepted. When the statute specifically prescribes the
period of limitation, it has to be adhered to.
11. It is required to be noted that Rule 18 of the 2002 Rules has
been enacted in exercise of rule making powers under Section 37(xvi)
of the Act. Section 37(xxiii) of the Act also provides that the Central
Government may make the rules specifying the form and manner in
which application for refund shall be made under section 11B of the Act.
In exercise of the aforesaid powers, Rule 18 has been made and
notification dated 6.9.2004 has been issued. At this stage, it is required
to be noted that as per Section 11B of the Act, an application has to be
made in such form and manner as may be prescribed. Therefore, the
application for rebate of duty has to be made in such form and manner
as prescribed in notification dated 6.9.2004. However, that does not mean
that period of limitation prescribed under Section 11B of the Act shall
not be applicable at all as contended on behalf of the appellant. Merely
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because there is no reference of Section 11B of the Act either in Rule
18 or in the notification dated 6.9.2004 on the applicability of Section
11B of the Act, it cannot be said that the parent statute - Section 11B of
the Act shall not be applicable at all, which otherwise as observed
hereinabove shall be applicable with respect to rebate of duty claim.
12. As such, the issue involved in the present appeal is squarely
covered by the decision of this Court in the cases of Mafatlal Industries
Ltd. (supra) and Uttam Steel Limited(supra). After taking into
consideration Section 11B of the Act and the notification and procedure
under Rule 12, it is specifically observed and held that rebate of duty of
excise on excisable goods exported out of India would be covered under
Section 11B of the Act. After referring to the decision of this Court in
the case of Mafatlal Industries Ltd. (supra), it is further observed in
the case of Uttam Steel Limited(supra) that such claims for rebate
can only be made under Section 11B within the period of limitation stated
therefor. On the argument based on Rule 12, this Court has specifically
observed that such argument has to be discarded as it is not open to
subordinate legislation to dispense with the requirements of Section 11B.
The aforesaid observations made by this Court in the case of Uttam
Steel Limited(supra) clinches the issue. The said decision has been
subsequently rightly followed by the Madras High Court in the case of
Hyundai Motors India Limited (supra).
13. Now so far as the reliance placed upon the decision of this
Court in the case of Raghuvar (India) Ltd. (supra), relied upon by the
learned senior counsel on behalf of the appellant is concerned, on
considering the relevant provisions of Central Excise Act, namely, Sections
11A & 11B of the Act, we are of the opinion that the said decision shall
not be applicable with respect to the period of limitation prescribed under
Section 11B of the Act with respect to claim for rebate of duty. The
question involved in the Raghuvar (India) Ltd. (supra) was with respect
to recovery of Modvat wrongly availed. In that case, it was the
manufacturer who claimed the benefit under Section 11A of the Act by
stating that no recovery could be made beyond the period of one year
limitation under Section 11A of the Act.