SANSERA ENGINEERING LIMITEDversusDEPUTY COMMISSIONER, LARGE TAX PAYER UNIT, BENGALURU

                        [2022] 9 S.C.R. 709                              709


               SANSERA ENGINEERING LIMITED                               A
                                  v.
    DEPUTY COMMISSIONER, LARGE TAX PAYER UNIT,
                   BENGALURU
                   Civil Appeal No. 8717 of 2022                         B
                       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
                                                                         C
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    D
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
                                                                         E
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     F
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
                                                                         G
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
                                                                         H
                                 709
710            SUPREME COURT REPORTS                      [2022] 9 S.C.R.


A     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
B     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
C     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
D     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
E     “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
F     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]
G           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
H     be in aid of the parent statute. At the cost of repetition, it is
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                      711
          LARGE TAX PAYER UNIT, BENGALURU

observed that subordinate legislation cannot override the parent         A
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
                                                                         B
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            C
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,
                                                                         D
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         E
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            F
      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                 G
      – held inapplicable.
      Everest Flavours Ltd. v. Union of India 2012 (282) ELT
      481 – approved.

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712            SUPREME COURT REPORTS                        [2022] 9 S.C.R.


A           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
B           (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
C           (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
D
      [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
E     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
F     Respondent.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
G     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
H
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                           713
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

claim of the appellant for rebate on the ground that the claim was barred     A
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       B
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       C
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 Orders-       D
in-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          E
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      F
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;           G
      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;                                H
714      SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A     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
B     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
C     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
D     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
E     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
F     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
G     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,
H
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                          715
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

      Jaipur v. Raghuvar (India) Limited, (2000) 5 SCC 299 =                 A
      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        B
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       C
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:
                                                                             D
      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);               E
      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).                               F
      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         G
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   H
716             SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     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
B
      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
C     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
D     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.
E           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
F     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
G     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.

H
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                             717
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

       4.2 It is further submitted that the decision of this Court in the       A
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
                                                                                B
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          C
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,      D
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           E
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.          F
       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           G
“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.                                                              H
718             SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A             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
B     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
C     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
D     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
E     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
F     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,
G     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
H     further submitted that if the submission on behalf of the appellant that
 SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                               719
    LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

the period of limitation of one year prescribed under Section 11B of the           A
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.
                                                                                   B
      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.
                                                                                   C
      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.                                      D

      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            E
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             F
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.
                                                                                   G
      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
                                                                                   H
720      SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     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
B
      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
C     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.

D     [* * *]
      [(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
E     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
F     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
G
      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];
H
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                           721
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

    (c) refund of credit of duty paid on excisable goods used as inputs       A
    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          B
    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;                                                                   C
    (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              D
    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         E
    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 sub-
    section (2) shall be laid before each House of Parliament, if it is       F
    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
                                                                              G
    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.
                                                                              H
722      SUPREME COURT REPORTS                          [2022] 9 S.C.R.


A     (5) For the removal of doubts, it is hereby declared that any
      notification issued under clause (f) of the first proviso to sub-
      section (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.]
B     [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, —
C
      (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, —

D     (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
E     (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
F     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
G     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
H     goods, if after the manufacturer has made the payment on the
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                           723
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

      basis of such rate for any period but before the expiry of that         A
      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 5-      B
      A, 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;]
                                                                              C
      [(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.]”                   D
       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
                                                                              E
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            F
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
                                                                              G
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         H
724             SUPREME COURT REPORTS                            [2022] 9 S.C.R.


A     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
B     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
C     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
D     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
E     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)
F     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
G     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
H
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                           725
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

because there is no reference of Section 11B of the Act either in Rule        A
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       B
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      C
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          D
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).
                                                                              E
       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   F
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          G
limitation under Section 11A of the Act. This Court negated that claim
by observing that recovery contemplated under Section11A is different
and distinct from the Modvat wrongly availed. For reaching that
conclusion, this Court considered that the recovery of Modvat would be
governed by a special provision contained in Rule 57-I and therefore the
                                                                              H
726             SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A     provision of Section 11A of the Act, which is a general provision, shall
      not be applicable. In the present case, as observed hereinabove, section
      11B of the Act shall be specifically applicable with respect to claim for
      rebate of duty. Therefore, as such, section 11B of the Act cannot be said
      to be a general provision. Therefore, the period of limitation prescribed
      under Section 11B of the Act shall have to be made applicable with
B
      respect to claim for rebate of duty.
             The decision of the Allahabad High Court in the case of Camphor
      and Allied Products Ltd. (supra) and other decisions of the Madras
      High Court, Punjab & Haryana High Court and Rajasthan High Court
      taking a contrary view, relying upon the decision of this Court in the case
C     of Raghuvar (India) Ltd. (supra), are not a good law and shall not be
      of any assistance to the appellant.
             14. At this stage, the decision of the Bombay High Court in the
      case of Everest Flavours Ltd.(supra) is required to be referred to. In
      the said case, the Bombay High Court was considering the limitation
D     prescribed under Section 11B of the Act with respect to rebate of excise
      duty. In the said decision, it is specifically observed that since statutory
      provision for refund in Section 11B ibid brings within its purview, a rebate
      of excise duty, Rule 18 of the 2002 Rules cannot be read independent of
      requirement of limitation prescribed in Section 11B. Before the Bombay
E     High Court, the decision of the Madras High Court in the case of Dorcas
      Market Makers Pvt. Ltd. (supra), which is relied upon on behalf of the
      appellant was also pressed into service by the assessee. However, the
      Bombay High Court did not agree with the said decision. The Bombay
      High Court also distinguished the decision of this Court in the case of
      Raghuvar (India) Ltd. (supra). In paragraphs 7 to 10, it is observed
F     and held as under:
            “7. Counsel appearing on behalf of the petitioner sought to place
            reliance on a decision of the Supreme Court in Collector of
            Central Excise v. Raghuvar (India) Ltd. – (2000) 5 SCC
            299. The issue which fell for determination before the Supreme
G           Court, inter alia, was whether action for the recovery of MODVAT
            credit wrongly availed of or utilised in an irregular manner under
            Rule 57-I would be governed by the period of limitation of six
            months (at the relevant time) prescribed in Section 11A. The
            Supreme Court noted that Section 11A is not an omnibus provision
H           which provides any period of limitation for all or any and every
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                        727
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

    kind of action to be taken under the Act or the Rules but would be     A
    attracted only to cases where any duty of excise has not been
    levied or paid or has been short-levied or short-paid or erroneously
    refunded. The judgment of the Supreme Court holds that Rule
    57-I envisages disallowance of the credit and consequential
    adjustment in the credit account or the account current maintained
                                                                           B
    by the manufacturer and it is only if such adjustments are not
    possible, that an amount equivalent to the credit illegally availed
    of could be recovered. Consequently Rule 57-I, it was held, could
    not involve a case of manufacture and removal of excisable goods
    without subjecting such goods to levy or payment in the various
    circumstances enumerated in Section 11-A. Hence, on its own            C
    terms, it was held that Section 11A will have no application or
    operation to cases covered under Rule 57-I. The Supreme Court
    ruled that the situation on hand and the one which is to be dealt
    with under Rule 57-I as it stood prior to amendment, did not fall
    under any of those contingencies provided in Section 11A.
                                                                           D
    8. In contrast, in so far as Section 11B is concerned, the provision
    categorically comprehends a rebate of excise duty on excisable
    goods exported out of India or on excisable materials used in the
    manufacture of goods which are exported out of India. Since the
    statutory provision for refund in Section 11B brings within its
    purview, a rebate of excise duty on goods exported out of India or     E
    materials used in the manufacture of such goods, Rule 18 cannot
    be read independent of the requirement of limitation prescribed in
    Section 11B. The Judgment of the Supreme Court
    in Raghuvar dealt with a situation where Section 11A did not bring
    within its purview an action for the recovery of MODVAT credit         F
    wrongly availed of which formed the subject matter of Rule 57-I.
    It was in this view of the matter that the Supreme Court held that
    the period of limitation prescribed under Section 11A would not
    apply to an action for recovery of MODVAT credit under Rule
    57-I. This can have no application in the present situation which is
    clearly distinctive, in the sense that Section 11B specifically        G
    comprehends an application for rebate of excise duty on goods
    exported or materials used in their manufacture.
    9. A judgment of the Madras High Court in Dorcas Market
    Makers Private Limited, Chennai v. CIT (Appeals) 2012 (281)
                                                                           H
728      SUPREME COURT REPORTS                             [2022] 9 S.C.R.


A     E.L.T. 227 (Mad.) was sought to be relied upon to submit that
      Section 11B of the Central Excise Act would not operate in respect
      of an application under Rule 18 of the Central Excise Rules, 2002.
      The learned Single Judge of the Madras High Court held that
      when a statutory Notification which was issued under Rule 18
      does not prescribe any time limit, Section 11B would not be
B
      attracted. With respect, the learned Single Judge of the Madras
      High Court has not had due regard to the specific provision of
      Explanation (A) to Section 11B of the Act under which the
      expression “refund” is defined to include rebate of duty of excise
      on excisable goods exported out of India or on excisable materials
C     used in the manufacture of such goods. The judgment of the
      Supreme Court in Raghuvar which has been relied upon by the
      learned Single Judge of the Madras High Court has already been
      considered hereinabove.
      10. In exercise of the powers conferred by Rule 18, the Central
D     Government has issued a Notification3. The Notification prescribes
      the conditions and limitations upon which a claim for rebate can
      be granted. Among the conditions and limitations under Clause
      (2) of the Notification is the requirement that the excisable goods
      shall be exported within six months from the date on which they
      were cleared from the factory of manufacture or warehouse.
E     The procedures are stipulated in Clause (3). Sub-clause (iv)
      provides for the sealing of goods intended for export, at the place
      of dispatch and the exporter shall present goods along with four
      copies of an application in Form ARE-I specified in the Annexure
      to the Notification to the Superintendent or Inspector of Central
F     Excise having jurisdiction over the factory of production or
      manufacture or warehouse. Sub-clause (v) then stipulates that
      the Superintendent or Inspector shall verify the identity of goods
      mentioned in the application, the particulars of the duty paid or
      payable and if found in order, shall seal each package or the
      container and endorse each copy of the application in token of
G     having carried out the examination. The original and duplicate
      copies of the application are returned to the exporter. The triplicate
      copy of the application is to be sent to the Officer with whom a
      rebate claim is to be filed either by post or by handing over to the
      exporter in a sealed cover after posting the particulars in the official
H     record or to be sent to the Excise Rebate Audit Section at the
SANSERA ENGINEERING LIMITED v. DEPUTY COMMISSIONER,                         729
   LARGE TAX PAYER UNIT, BENGALURU [M. R. SHAH, J.]

    place of export in case rebate is to be claimed by electronic           A
    declaration. Sub-clause (b) of Clause (3) of the Notification makes
    a provision for presenting a claim for rebate of Central Excise
    duty in the following terms:
    “(b) Presentation of claim for rebate to Central Excise: —
    (i) Claim of the rebate of duty paid on all excisable goods shall be    B
    lodged along with 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         C
    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 the application received from the officer of
    customs with the original copy received from the exporter and           D
    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.”
    The provisions of the Notification thus make it abundantly clear
    that a mere submission of the ARE-I form does not constitute the        E
    presentation of a claim for rebate of Central Excise. Form ARE-
    1 in turn has various parts including Part A which deals with the
    certification by Central Excise Officer, Part B which deals with
    certification by the Officer of Customs and Part D which is the
    actual Rebate Sanction Order. Moreover, it would be necessary
    to take note of the fact that under Section 11BB of the Act, interest   F
    is liable to be paid if any duty which is ordered to be refunded
    under sub-section (2) of Section 11B to any applicant is not
    refunded within three months from the date of receipt of application
    under sub-section (1) of Section 11B. For the purpose of Section
    11BB, presentation of the application is the relevant date from         G
    which the period of three months has to be reckoned. If the
    submission of the petitioner were to be accepted, viz. that the
    mere presentation of the ARE-1 form would constitute an
    application for rebate of Central Excise Duty, that would defeat
    the whole scheme that has been enunciated in Section 11B and
                                                                            H
730              SUPREME COURT REPORTS                           [2022] 9 S.C.R.


A            Section 11BB. Before the application for rebate can be allowed,
             an exporter has to furnish various documents including a request
             on the letterhead of the exporter containing a claim for rebate, the
             ARE-1 numbers and dates, corresponding invoice numbers and
             dates, the original copy of the ARE-1, invoice issued under Rule
             11, self-attested copy of shipping bill and self-attested copy of bill
B
             of lading together with a Disclaimer Certificate in case where a
             claimant is other than the exporter. These requirements have been
             spelt out in para 8.3 of the CBEC Excise Manual. The mere
             presentation of an ARE-1 form does not, therefore, constitute the
             filing of a valid application for rebate. An application for refund
C            has to be filed, together with documentary material as required.
             We, therefore, do not accept the second submission which has
             been urged on behalf of the petitioner.”
            We are in complete agreement with the view taken by the Bombay
      High Court in the case of Everest Flavours Ltd. (supra). Contrary
D     decisions of Madras High Court, Allahabad High Court, Punjab &
      Haryana High Court and Rajasthan High Court, referred to hereinabove,
      are hereby overruled.
             15. In view of the above and for the reasons stated above, it is
      observed and held that while making claim for rebate of duty under Rule
E     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. We see no reason to interfere
F     with the impugned judgment and order passed by the High Court. Under
      the circumstances, the present appeal fails and deserves to be dismissed
      and is accordingly dismissed. However, there shall be no order as to
      costs.

G     Devika Gujral                                                Appeal dismissed.
      (Assisted by : Shevali Monga, LCRA)




H