GOVIND MATHUR, J. - (1.) The petitioner, a company corporated, has preferred this petition for writ to assail validity of the order dated 9.4.2012, passed by the revisional authority under the Central Excise Act, 1944 (hereinafter referred to as 'the Act of 1944'). By the order aforesaid the revisional authority affirmed the order dated 1.4.2010, passed by the Commissioner of Central Excise (Appeals), Jaipur-II with respect to order in original passed by the Deputy Commissioner, Central Excise Division, Chittorgarh.
(2.) In brief, facts of the case are that an application to have rebate as per Rule 18 of the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules of 2002'), preferred by the petitioner on 17.3.2008 in respect of export of goods on payment of duty through merchant exporter, came to be rejected being barred by limitation as per Section 11-B of the Act of 1944. Being aggrieved by rejection of claim, an appeal was filed before the Commissioner (Appeals), that came to be rejected vide order dated 1.4.2010. A revision petition preferred before the Central Government as per Section 35-EE of the Act of 1944 was also rejected under the order impugned dated 2.4.2012. The appellate authority as well as the revisional authority, after examining facts of the case, arrived at the conclusion that the rebate was not claimed within a period of one year from the date of shipment i.e. 4.1.2007, therefore, the same is not admissible.
(3.) Before us, it is stated that though the goods were allowed for export on 4.1.2007, but as a consequence to some dispute at customs relating to export concerned, the corresponding shipping bill was not issued by the Department of Customs immediately. The certificate was given on 28.1.2008 i.e. after a lapse of more than a period of one year and after having the shipping bill, the petitioner claimed rebate as per Rule 18 of the Rules of 2002. According to the petitioner, as per the supplementary instructions provided under the notification No.19/2004/CE(NT) dated 6.9.2004 read with para 8 of Part-V of CBEC's Excise Manual, it was mandatory to furnish shipping bill along with the rebate claim, as such, the delay occurred due to non-issuance of shipping bill as in absence of that no rebate could have been claimed by the petitioner. According to learned counsel the rebate claimed was filed within a period of two months from the date of issuance of relevant shipping bill, thus, the rebate should have been awarded by the respondents. The submission advanced is substantiated by a Division Bench judgment of this Court in Gravita India Ltd. v. Union of India, reported in 2016 (334) E.L.T. 321 (Raj.). In the case aforesaid a Division Bench of this Court, while examining the same issue, held as under:- "17. There is no quarrel with proposition that if Statute provided for limitation, it has to be adhered to. What however is being claimed by the petitioner is different. The question which arises in the present case is as to what should be the starting point for computation of this period of one year. We are persuaded to follow the view taken by the Gujarat High Court in Cosmonaut Chemicals, supra, that any procedure prescribed by a subsidiary legislation has to be in aid of justice and procedural requirements cannot be read so as to defeat the cause of justice. The claimant cannot be asked to tender deficient claim within limitation period and claim cannot be simultaneously treated as not filed till documents furnished, if the manual of supplementary instruction indicating that refund or rebate claim deficient in any manner to be admitted when delay in providing document is attributable to the Department. Where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point for computation of limitation." In light of the judgment given by Division Bench of this Court in Gravita India Ltd. (supra), as per learned counsel appearing on behalf of the petitioner, the starting point for computation of limitation under Section 11-B of the Act of 1944, would have started only from the date when necessary documents to substantiate the claim of refund were furnished to the petitioner. ;