Supreme Court

Sansera Engineering Limited vs. Deputy Commissioner, Large Tax Payer Unit, Bengaluru

MANU/SC/1553/2022

29.11.2022

Excise

For claiming rebate of duty under Rule 18 of the Central Excise Rules, the period of limitation prescribed under Section 11B of the Central Excise Act, shall have to be applied

The original writ Petitioner/Appellant has preferred the present appeal feeling aggrieved with the impugned judgment passed by the High Court, whereby the Division Bench of the High Court has confirmed the common judgment and order passed by the learned Single Judge dismissing the writ petitions, upholding the order passed by the Respondent rejecting the 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.

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?

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. When the statute specifically prescribes the period of limitation, it has to be adhered to.

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 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.

While making claim for rebate of duty under Rule 18 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. Appeal dismissed.

Tags : Rebate claim Limitation period Applicability

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