Ashwin Fasteners of Ashwin Panchal vs Union of India (UOI)

R.M. Doshit, J.—This petition preferred under Article 226 of the Constitution arises from the orders dated 22nd August 2008 made by the Assistant Commissioner, Central Excise, Ahmedabad whereunder the claims of the Petitioner for rebate of the duty paid on the goods exported, u/s 11B of the Central Excise Act, 1944 [hereinafter referred to as, ''the Act''] have been rejected.

The Petitioner-Messrs. Ashwin Fasteners is a manufacturer of machine parts and components of the machineries. It is the claim of the Petitioner that in the year 2007, the Petitioner had exported goods and paid duty as indicated in the statement annexure-A to the petition. It is the claim of the Petitioner that the Petitioner is entitled to rebate of the amount of duty paid over the goods exported as envisaged by Rule 18 of the Central Excise Rules, 1944 [hereinafter referred to as, ''the Rules'']. The Petitioner, therefore, made applications for rebate. The said applications have been rejected by the Assistant Commissioner, Central Excise, Ahmedabad as time barred. Therefore, the present petition.

Learned advocate Mr. Dave has appeared for the Petitioner. He has taken us through Section 11B of the Act and Rule 18 of the Rules. He has relied upon the judgment of the Division Bench of his Court in the matter of Indo-Nippon Chemicals Co. Ltd. and Another Vs. Union of India (UOI) and Others, and of the Hon''ble Supreme Court in the matter of Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others,

Mr. Dave does not dispute that the claims for rebate were made more than one year after the date of shipment of the goods. He also does not dispute that Section 11B of the Act envisages filing of application for rebate within one year from the relevant date. He, however, has submitted that this Court can exercise its extra ordinary jurisdiction under Article 226 of the Constitution to accord benefit of rebate upon the Petitioner even after expiry of the period of one year.

Section 11B of the Act empowers a person, inter alia, to claim refund of any duty of excise before the expiry of one year from the relevant date. The said section does not provide, either expressly or impliedly, that such application, in the given circumstances may be made after the period of one year from the relevant date. In other words, the Respondent authority has no power or jurisdiction to entertain the claim for refund after expiry of the period of one year from the relevant date. Admittedly, the Petitioner did not make such application within one year. In our opinion, the Respondent has rightly rejected the applications for rebate made by the Petitioner after expiry of period of one year from the relevant date.

In the matter of Indo-Nippon Chemicals Company Limited (supra), this Court did permit application for rebate made after expiry of period of one year, but in a very peculiar circumstance. The Court found that there was a mutual mistake of the Assessee and the department resulting into erroneous reversal of credit. It was only in that peculiar circumstance that the Court allowed the benefit of modvat credit. In absence of existence of some peculiar circumstance, the benefit of rebate cannot be extended to the Petitioner for asking.

In the matter of Mafatlal Industries Limited (supra), the Hon''ble Supreme Court had occasion to consider the scope of Section 11B of the Act. In paragraph 91 of the judgment, the Hon''ble Court observed that,

...All claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in accordance with the relevant provisions relating to refund, as they obtained from time to time, We see no unreasonableness in saying so.

In the present case, it is not disputable that the Petitioner did not make claim for rebate within one year from the relevant date as is required u/s 11B of the Act. In our view, the Assistant Commissioner was right in rejecting the claim of the Petitioner as time barred.

No other contention is raised before us.

In above view of the matter, we see no substance in the present petition. The petition is dismissed in limine. Notice is discharged.