UNION OF INDIA & ORS.versusUTIAM STEEL LTD.

                        (2015] 4 S.C.R. 770


A                    UNION OF INDIA & ORS.
                                  v.
                        UTIAM STEEL LTD.
                  (Civil Appeal No. 7449 of 2004)
B
                           MAY 05, 2015

              [A.K. SIKRI AND R. F. NARIMAN, JJ.]

       Central Excise Act, 1944 - s. 118 - Claim for refund of
C duty - Denial of - Barred by limitation - Assessee engaged
  in manufacture and export - Claims for rebate - Filed
  beyond the period of six months from the date of shipment
  u/s. 118- Subsequently, s. 118 was amended on 12.5.2000
  where the period of six months was substituted by a period
0
  of one year - Application of amended provision - Held:
  Effect of the amendment of s. 11 B is that all claims for rebate
  pending on this date would be governed by a period of one
  year from the date of shipment and not six months -
E However, claim for rebate should not be made beyond the
  original period of six months - On facts, claims for rebate
  were made beyond the original period of six months, thus,
  assessee cannot avail of the extended period of one year
  on the subsequent amendment to s. 118 - Central Excise
F Rules - rr. 12, 13.

        Allowing the appeal, the Court

      HELD: 1.1 A period of limitation being procedural or
  adjectival law would ordinarily be retrospective in
G nature. This, however, is with one proviso super added
  which is that the claim made under the amended
  provision should not itself have been a dead claim in
  the sense that it was time barred before an Amending
H                               770
         UNION OF INDIA v. UTTAM STEEL LTD.                    771


Act with a larger period of limitation comes into force.        A
[Para 10) (776-G-H; 777-A]

     1.2 The effect of the amendment of Section 118 of
the Central Excise Act, 1944 on 12th May, 2000 is that
all claims for rebate pending on this date would be · B
governed by a period of one year from the date of
shipment and not six months. This, however, is subject
to the rider that the claim for rebate should not be made
beyond the original period of six months. On facts, since
the claims for rebate were made beyond the original C
period of six months, the respondents cannot avail of
the extended period of one year on the subsequent
amendment to Section 118. All claims for rebate/refund
have to be made only u/s.118 with one exception-where
a statute is struck down as unconstitutional. Further, D
the limitation period of six months has to be strictly
applied. [Para 11] (779-D-E; 781-E-F]

     1.3 It is clear from Section 118 (2) proviso (a) that a
rebate of duty of excise on excisable goods exported            E
out of India would be covered by the said provision. A
reading of *Mafatlal lndustri~s case would also show
that such claims for rebate can only be made under
Section 118 within the period of limitation stated
therefor. This being the case, the argument based on            F
Rule 12 would have to be discarded as it is not open to
subordinate legislation to dispense with the
requirements of Section 118. Equally, the argument that
on a bond being provided under Rule 13, the goods
would have been exported without any problem of                 G
limitation would not hold as the exporter in the instant
case chose the route under Rule 12 which, is something
that can only be done if the application for rebate had
been made within six months. [Para 13] [787-H; 788-A-           H
D]
772         SUPREME COURT REPORTS                [2015] 4 S.C.R.


A        *Mafatlal Industries Ltd. v. Union of India 1996 (10)
      Suppl. seR 585: (1997) 5 sec 536 - relied on.

       S.S. Gadgil v. Lal and Company AIR 1965 s.e. 171:
  1964 SeR 72; J.P Jani, Income Tax Officer v. lnduprasad
B Devshanker Bhatt AIR 1969 SC 778: 1969 SCR 714; New
  India Insurance Co. Ltd. v. Shanti Misra 1976 (2) SCR 266
  : (1975) 2 sec 840; T Kaliamurthi v. Five Gori Thaikkal
  Wakf2008 (11) SCR 758: (2008) 9 SCC 306; Thirumalai
  Chemicals Ltd. v. Union of India 2011 (4) SCR 838: (2011)
c 6 sec 739 - referred to.
                        Case Law Reference

       1964 SCR 72                Referred to.      Para 10
D      1969 SCR 714               Referred to.     Para 10

       1976 (2) SCR 266           Referred to.     Para 10

       2008 (11) SCR 758          Referred to.      Para 10
E      2011 (4) seR 838           Referred to.     Para 10

       1996 (10) Suppl. SCR 585Relied on           Para 11, 13

          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
F     7449 of 2004.

          From the Judgment and Order dated 12.08.2003 of the
      High Court of Judicature at Bombay in Writ Petition No. 557
      of 2003.
G         Pinky Anand, ASG, Ritesh Kumar, K. Subba Rao, B.
      Krishna Prasad for the Appellants.

         S. K. Bagaria (AC.), K. A. Singh, Prity Kunwar, George
      Thomas, Ejaz Maqbool for the Respondent.
H
          UNION OF INDIA v. UTIAM STEEL LTD.                      773


    The Judgment of the Court was delivered by                     A

     R.F. NARIMAN, J. 1. The respondent herein was
engaged in the manufacture and export of steel products.
They exported galvanized corrugated sheets. The goods were
shipped on board on 25.5.1999 and 10.6.1999 respectively B
in two lots. As per the law prevailing at the relevant time, the
respondent had to file claims for rebate within six months from
the date of shipment i.e. on or before 20.11.1999 and
10. 12.1999 respectively. However, claims for rebate on both
counts were filed only on 28.12.1999 beyond the period of C
six months under Section 11 B of the Central Excise Act, 1944
as it stood at the relevant time.

    2. On these facts, a show cause notice dated 7.3.2001
was issued and by an order dated 4.10.2001, the Deputy D
Commissioner (Rebate) rejected the claim for rebate on the
ground that they were time barred.

     3. Section 118 was amended on 12.5.2000 where the
period of six months was substituted by a period of one year.      E
Since the rebate application was filed within the period of one
year from the date of the two shipments, the respondent
contended that they were within ~ime.

     4. By an order dated 15.2.2002, the appellate authority       F
allowed the respondent's appeal holding that the extended
period of one year was available to the respondent, the period
prescribed for limitation being procedural law and, therefore,
retrospective in nature.

    5. Against this order, the Central Government by an order G
dated 16.8.2002 allowed the revision applications of the
Union holding that the extended period of limitation of one year
was not available to the assessee.

    6. The assessee's writ petition being Writ No.557 of 2003      H
774        SUPREME COURT REPORTS                       [2015] 4 S.C.R.


A     was allowed by the impugned judgment dated 12.8.2003
      stating:

          "41. As stated hereinabove, right to rebate of duty
          accrues under Rule 12 on export of.goods. That right is
B         not obliterated if the application for rebate of duty is not
          filed within the period of limitation prescribed under
          Section 11 B. In fact, Rule 12 of the Excise Rules
          empowers the excise authorities to grant rebate of duty
          even if some of the procedural requirements are not
c         fulfilled. Even proviso (a) to Section 11 B (2) clearly
          provides that in the case of rebate of duty, the rebate
          will be granted to the exporter even if the duty element
          is passed on by the exporter. Thus, under Section 11 B
          the amount of excise duty is refunded to the exporter
D         even if the duty element is passed on by the exporter.
          Thus, reading Rule 12 with Section 11 B of the Act it
          becomes abundantly clear that the limitation prescribed
          under Section 11 B is only procedural and does not
          affect the substantive right to claim rebate of duty under
E         Rule 12. Moreover, there are no consequences set out
          in the statute, if the application for rebate of duty is not
          made within the period of limitation. Thus the right to
          rebate of duty which flows from Rule 12 is not destroyed
          by failure to apply for rebate of duty within six months
F
          time prescribed under the statute. Thus Section 11 B
          merely debars the remedy if the claim is not filed within
          the period of limitation set out therein, if there is alteration
          in the procedural law, if there is no reason to presume
G         that the amendment was not intended to apply
          retrospectively. In other words, where ,the amended
          statute' alters the existing practice and procedure of
          enforcing the substantive rights, then the amended
          procedure would apply for enforcement of the
H         substantive rights existing on the date when the
              UNION OF INDIA v. UTIAM STEEL LTD.                   775
                      [R.F. NARIMAN, J.]

          amended provisions came into force. Accordingly, we A
          hold that the limitation of one year provided by
          amendment to Section 11 B with effect from 12th May
          2000 would apply retrospectively and would cover
          exports made one year prior to 12th May 2000. To put it
          differently the amended limitation of one year with effect B
          from 12th May, 2000 would apply to all exports made
          after 12th May 1999. In the present case, the exports
          were effected on 20th May 1999 and 1Olh June 1999 i.e.
          within one year from 12th May 2000 and hence, the
          amended limitation period of one year would apply to C
          the case of the petitioners.

          45. Alternatively, once it is held that the limitation under
          Section 11 B is procedural, then any amendment to such
          procedural law can be said to have retroactive effect, if D
          not the retrospective effect. The amended Section 11 B,
          without affecting the existing substantive right, merely
          enables an expanded remedy period. In other words,
          even if the amendment is not to have retrospective
          effect, it would nevertheless have retroactive effect and E
          in that view of the matter, the case of the petitioners
          would be covered within the amended period of
          limitation and thus the petitioners would be entitled to     /
          rebate of duty. In the light of the view taken, for the F
          reasons recorded, we do not think it necessary to dwell
          upon other contentions raised by the petitioners."

          7. Ms. Pinky Anand, learned Additional Solicitor General,
     argued that Section 11 B was squarely attracted and as the
     original claim was itself time barred being beyond the period G
     of six months, an amendment to Section 11 B later made
     would not apply to revive a claim that was already made out
     of time. ShE? cited a number of judgments in support of this
     argument.
..                                                                  H
776         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A         8. Ms. Prity Kunwar, appeared on behalf of the
      respondent. As interesting questions of law arose, we
      appointed Shri S.K. Bagaria to be Amicus Curiae to assist
      the Court. We must record our satisfaction at the level of
      assistance received from Shri Bagaria.
B
       9. The learned Amicus Curiae argued before us that a
  rebate claim can only be made under Rule 12 of the Central
  Excise Rules which in turn referred such claims to a
  notification dated 22.9.1994. The said notification allowed
C rebate of duty on certain conditions, one of them being that a
  rebate claim must be made within the time limit specified in
  Section 118 of the Central Excise Act. Shri Bagaria then
  argued that Rule 12 proviso allowed the Commissioner of
  Central Excise for reasons to be recorded in writing to allow
D the whole or part of the claim for rebate even if all or any of
  the conditions laid down in the notification were not complied
  with if he is satisfied that the goods have, in fact, been
  exported. There is no doubt whatsoever that the goods have,
  in fact, been exported in the present case. Therefore, it was
E open to the Commissioner to waive the requirements of
  Section 11 B of the Central Excise Act. He further argued that
  the goods could also have been exported under Rule 13 in
  which case no question of any period of limitation would arise.
F This being the case, it is clear that the present is a case
  where there is a small delay beyond six months which could
  easily be overlooked.

          10. We have heard learned counsel for the parties and
  Shri Bagaria, the learned Amicus Curiae at some length.
G There is no doubt whatsoever that a period of limitation being
  procedural or adjectival law would ordinarily be retrospective
  in nature. This, however, is with one proviso super added
  which is that the claim made under the amended provision
H should not itself have been a dead claim in the sense that it

                                                                    ..
          UNION OF INDIAv. UTTAM STEEL LTD.                       777
                  [R.F. NARIMAN, J.]

was time barred before an Amending Act with a larger period        A
of limitation comes into force. A number of judgments of this
Court have recognized the aforesaid proposition. Thus, in S.S.
Gadgil v. Lal and Company, AIR 1965 S.C. 171, this Court
stated:-
                                                                   B
     "13. As we have already pointed out, the right to
     commence a proceeding for assessment against the
     assessee as an agent of a non-resident party under the
     Income Tax Act before it was amended, ended on March
     31, 1956. It is true that under the amending Act by           C
     Section 18 of the Finance Act, 1956, authority was
     conferred upon the Income Tax Officer to assess a
     person as an agent of a foreign party under Section 43
     within two years from the end of the year of assessment.
     But authority of the Income Tax Officer under the Act         D
     before it was amended by the Finance Act of 1956
     having already come to an end, the amending provision
     will not assist him to commence a proceeding even
     though at the date when he issued the notice it is within
     the period provided by that amending Act. This will be        E
     so, notwithstanding the fact that there has been no
     determinable point of time between the expiry of the time
     provided under the old Act and the commencement of
     the amending Act. The legislature has given to Section        F
     18 of the Finance Act, 1956, only a limited retrospective
     operation i.e. up to April 1, 1956, only. That provision
     must be read subject to the rule that in the absence, of
     an express provision or clear implication, the legislature
     does not intend to attribute to the amending provision        G
     a greater retrospectivity than is expressly mentioned, nor
     to authorise the Income Tax Officer to commence
     proceedings which before the new Act came into force
     had by the expiry of the period provided, become
     barred."           ·                                          H
778         SUPREME COURT REPORTS                     [2015) 4 S.C.R.


A         To similar effect is the judgment in J.P. Jani, Income Tax
      Officer v. lnduprasad Devshanker Bhatt, AIR 1969 SC
      778. The Court held:

           "6. In our opinion, the principle of this decision applies
B          in the present case and it must be held that on a proper
           construction of Section 297(2)(d)(it) of the new Act, the
           Income Tax Officer cannot issue a notice under Section
           148 in order to re-open the assessment of an assessee
           in a case where the right to re-open the assessment was
c          barred under the old Act at the date when the new Act
           came into force. It follows therefore that the notices
           dated 13-11-1963 and 9-1-1964 issued by the Income
           Tax Officer, Ahmedabad were illegal and ultra vires and
           were rightly quashed by the Gujarat High Court by the
D          grant of a writ."

          In New India Insurance Co. Ltd. v. Shanti Misra,
      (1975) 2 SCC 840, this Court said:

E           'The new law of limitation providing a longer period
           cannot revive a dead remedy. Nor can it suddenly
           extinguish vested right of action by providing for a
           shorter period of limitation."

          Similarly in T. Kaliamurthi v. Five Gori Thaikkal Wakf,
F
      (2008) 9 SCC 306, this Court said:

           "40. In this background, let us now see whether this
           section has any retrospective effect. It is well settled that
           no statute shall be construed to have a retrospective
G          operation until its language is such that would require
           such conclusion. The exception to this rule is enactments
           dealing with procedure. This would mean that the law
                                                                           ..
           of limitation, being a procedural law, is retrospective in
           operation in the sense that it will also apply to
H
          UNION OF INDIAv. UTIAM STEEL LTD.                        779
                  [R.F. NARIMAN, J.]

     proceedings pending at the time of the enactment as            A
     also to proceedings commenced thereafter,
     notwithstanding that the cause of action may have arisen
     before the new provisions came into force. However, it
     must be noted that there is an important exception to
     this rule also. Where the right of suit is barred under the    B
     law of limitation in force before the new provision came
     into operation and a vested right has accrued to another,
     the new provision cannot revi 11e the barred right or take
     away the accrued vested right."
                                                                    c
    For the latest exposition of the same Rule see:
Thirumalai Chemicals Ltd. v. Union of India, (2011) 6
sec 739 at para 29.
    11. The effect of the amendment of Section 11 B on 121h         o
May, 2000 is that all claims for rebate pending on this date
would be governed by a period of one year from the date of
shipment and not six months. This, however, is subject to the
rider that the claim for rebate should not be made beyond the
original period of six months. On the facts of the present case,    E
since the claims for rebate were made beyond the original
period of six months, the respondents cannot avail of the
extended period of one year on the subsequent amendment
to Section 11 B.
                                                                    F
     The effect of Section 11 B, and in particular, applications
for rebate being made within time, has been laid down in
Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC.
536, thus:
                                                                    G
     "108. The discussion in the judgment yields the following
     propositions. We may forewarn that these propositions
     are set out merely for the sake of convenient reference
     and are not supposed to be exhaustive. In case of any
     doubt or ambiguity in these propositions, reference must       H
780    SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     be had to the discus!>ion and propositions in the body
      of the judgment.

       (1) Where a refund of tax/duty is claimed on the ground
      that it has been collected from the petitioner/plaintiff -
B     whether before the commencement of the Central
       Excises and Customs Laws (Amendment) Act, 1991 or
      thereafter - by misinterpreting or misapplying the
      provisions of the Central Excises and Salt Act, 1944
      read with Central Excise Tariff Act. 1985 or Customs
c     Act, 1962 read with Customs Tariff Act or by
      misinterpreting or misapplying any of the rules,
      regulations or notifications issued under the said
      enactments, such a claim has necessarily to be
      preferred under and in accordance with the provisions
D     of the respective enactments before the authorities
      specified thereunder and within the period of limitation
      prescribed therein. No suit is maintainable in that behalf.
      While the jurisdiction of the High Courts under Article
      226 - and of this Court under Article 32 - cannot be
E     circumscribed by the provisions of the said enactments,
      they will certainly have due regard to the legislative intent
      evidenced by the provisions of the said Acts and would
      exercise their jurisdiction consistent with the provisions
      of the Act. The writ petition will be considered and
F
      disposed of in the light of and in accordance with the
      provisions of Section 11-B. This is for the reason that
      the power under Article 226 has to be exercised to
      effectuate the rule of law and not for abrogating it.
G     The said enactments including Section 11-B of the
      Central Excises and Salt Act and Section 27 of the
      Customs Act do constitute "law" within the meaning of
      Article 265 of the Constitution of India and hence, any
      tax collected, retained or not refunded in accordance
H
          UNION OF 1NDIA v. UTIAM STEEL LTD.                        781
                  [R.F. NARIMAN, J.]

     with the said provisions must be held to be collected, A
     retained or not refunded, as the case may be, under the
     authority of law. Both the enactments are self-contained
     enactments providing for levy, assessment, recovery
     and refund of duties imposed thereunder. Section 11-B
     of the Central Excises and Salt Act and Section 27 of B
     the Customs Act, both before and after the 1991
     (Amendment) Act are constitutionally valid and have to
     be followed and given effect to. Section 72 of the
     Contract Act has no application to such a claim of refund
     and cannot form a basis for maintaining a suit or a writ C
     petition. All refund claims except those mentioned under
     Proposition (it) below have to be and must be filed and
     adjudicated under the provisions of the Central Excises
     and Salt Act or the Customs Act, as the case may be. It
                                                               0
     is necessary to emphasise in this behalf that Act
     provides a complete mechanism for correcting any
     errors whether of fact or law and that not only an appeal
     is provided to a Tribunal - which is not a departmental
     organ - but to this Court, which is a civil court."       E

     From the law laid down by this decision it is clear that all
claims for rebate/refund have to be made only under Section
11 B with one exception - where a statute is struck down as
unconstitutional. Further, the limitation period of six months       F
has to be strictly applied.

    12. And now to Shri Bagaria's argument. In order to
understand the argument, we will set out Rules 12 and 13 of
the Central Excise Rules together with the notification dated
22.9.1994.                                                    G

     "12. Rebate of duty.- (1) The Central Government may,
     from time to time, by notification in the Official Gazette,
     grant rebate of- (a) duty paid on the excisable goods;
                                                                     H
782    SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A     (b) duty paid on materials used in the manufacture of
      goods;

       if such goods are exported outside India or shipped as
      provision or stores for use on board a ship proceeding
B     to a foreign port or supplied to a foreign going aircraft,
      to such extent and subject to such safeguards,
      conditions and limitations as regards the class or
      description of goods, class or description of materials
      used for manufacture thereof, destination, mode of
C     transport and other allied matters as may be specified
      in the notification:

       Provided that if the Commissioner of Central Excise or
      as the case may be the Maritime Commissioner of
o     Central Excise is satisfied that the goods have in fact
      been exported, he may, for reasons to be recorded in
      writing, allow, the whole or any part of the claim for such
      rebate, even if all or any of the conditions laid down in
      any notification issued under this rule have not been
E     complied with.

      (2) Where the Central Government does not grant under
      clause (a) of sub-rule (1) either wholly or partially any
      rebate of duty paid on goods exported to a country
F     outside India, it may, in order to promote exports or fulfil
      obligations arising out of any treaty entered into between
      India and the Government of that country, provide, by
      notification in the Official Gazette, for payment to the
      Government of that country an amount not exceeding the
G     duty paid on such goods which are exported out of India
      to that country.

      (3) No rebate of duty in respect of excisable materials
      used in the manufacture of goods exported out of India
H.    under clause (b) of sub-rule (1) shall be allowed, if the
    UNION OF INDIA v. UTTAM STEEL LTD.                      783
            [R.F. NARIMAN, J.]

exporter avails of drawback of the said duty under the A
Customs and Central Excise Duties Drawback Rules,
1995 or avails of credit of said duty under section AA
of Chapter V of the Central Excise Rules, 1944.

Explanations-In this rule, the expressions,-                 B
(i) "manufacture" includes the process of blending of any
goods or making alterations or any other operation
thereon;

(ii) "materials" includes raw materials, consuamables C
(other than fuel) components, semi-finished goods,
assemblies, sub-assemblies, intermediate goods,
accessories, parts and packaging materials required
for manufacture of export goods but does not include D
capital goods used in the factory in or in relation to
manufacture of export goods.

(iii) Omitted.

 (4) The provisions of this rule shall not apply to such     E
excisable goods, export of which are prohibited under
any law for the time being in force.

13. Export in bond of goods on which duty has not
been paid.-                                       F

(1) The Central Government may, from time to time, by
notification in the Official Gazette-

(a) permit export of specified excisable goods in bond
without payment of duty in the like manner, as the goods G
regarding which the rebate is granted under sub-rule (1)
of rule 12, from a factory of manufacture or warehouse
or any other premises as may be approved by the
Commissioner of Central Excise;
                                                         H
                                                                     ,


784    SUPREME COURT REPORTS                    [2015]4S.C.R.


A     (b) specify materials, removal of which without payment
      of duty from the place of manufacture or storage for use
      in the manufacture in bond of export goods, may be
      permitted by the Commissioner of Central Excise;

B     (c) allow removal of excisable material without payment
      of duty for the manufacture of export goods, as may be
      specified, to be exported in execution of one or more
      export orders; or for replenishment of duty paid materials
      used in the manufacture of such export goods already
c     exported for the execution of such orders, or both;

      subject to such safeguards, conditions and limitations
      as regards the class or description of goods, class or
      description of materials used for manufacture thereof,
D     destination, mode of transport and other allied matters
      as may be specified in the notification which the
      exporter undertakes to abide by entering into a bond in
      the proper form with such surety or sufficient security,
      and under such conditions as the Commissioner
E     approves.

      (2) The Central Government may, from time to time, by
      notification in the Official Gazette, permit export of
      specified excisable goods in bond, without payment of
F     duty from a factory of manufacture or warehouse, to
      Nepal or Bhutan, subject to such conditions or limitations
      as regards the class of goods, destination, mode of
      transport and other matters as may be specified therein.

G     Explanation I. - In this rule, the expression
      "manufacture" includes the process of blending of any
      goods or making alterations or any other operation
      thereon.

      Explanation II. -   In this rule, the term "materials" shall
H
    UNION OF INDIA v. UTIAM STEEL LTD.                      785
            [R.F. NARIMAN, J.]

include raw materials, consumables ( other than fuel ), A
components, semi-finished goods, assemblies, sub-
assemblies, intermediate goods, accessories, parts
and packaging materials used in the manufacture of
export goods but does not include capital goods used
in the factory in or in relation to manufacture of export B
goods."

"Notifications and Procedures under Rule 12

 [I] Rebate of duty on export of all excisable goods         c
except ship's stores and mineral oil products
exported as stores for consumption on board an
aircraft on foreign run. - In exercise of the powers
conferred by clause (a) of sub-rule (1) of rule 12 of the
Central Excise Rules, 1944, the Central Government           o
hereby directs that rebate of duty paid on the excisable
goods as specified in the Table annexed hereto, shall
on their exportation out of India to any country except
Nepal and Bhutan, be made to the extent specified in
column (3) thereof:                                          E

Provided that -

(i) except as otherwise permitted by the Central Board
of Excise and Customs by a general or a special order,       F
the excisable goods shall be exported after payment of
duty directly from a factory or a warehouse;

(ii) the excisable goods are exported by the exporter in
accordance with the procedure set out in Chapter IX of
the Central Excise Rules, 1944;                          G

(iii) the excisable goods shall be exported within six
months from the date on which they were cleared for
export from the factory of manufacture or warehouse or
within such extended period as the Commissioner of           H
·'

     786   SUPREME COURT REPORTS                    [2015) 4 S.C.R.


     A     Central Excise may in any particular case allow;

           (iv) the claim or, as the case may be, supplementary
           claims, for rebate of duty is lodged with the Maritime
           Commissioner of Central Excise or the Commissioner
     B     of Central Excise having jurisdiction over the factory of
           manufacture or warehouse, as mentioned in the relevant
           export documents; together with the proof of due
           exportation within the time limit specified in section 118
           of the Central Excise Act, 1944(1 of 1944);
     c
           (v) the market price of the excisable goods at the time
           of exportation is, in the opinion of the Commissioner of
           Central Excise not less than the amount of rebate of duty
           claimed;
     D
           (vi) the amount of rebate of duty admissible is not less
           than five hundred rupees;

           (vii) the exporter undertakes to refund any rebate of duty
           erroneously paid, to the Commissioner of Central
     E     Excise sanctioning such rebate in accordance with
           provisions of section 11A of the Central Excise Act,
           1944(1 of 1944);

           (viii) if the excisable goods are not exported or the proof
     F     of export thereof is not furnished to the satisfaction of
           the Commissioner of Central Excise or, as the case may
           be, the Maritime Commissioner of Central Excise in the
           manner and within the prescribed time limit, the said
           officer on an application being made by the exporter or
     G     otherwise, shall cancel the export documents;

           (ix) if exported -

           (a) by land, the export shall take place by such routes
     H     or such land Customs Stations or Border Check Posts
            UNION OF INDIA v. UTTAM STEEL LTD.                       787
                    [R.F. NARIMAN, J.]

      as have been approved by the Central Government;                A

      (b) by parcel post, the parcel is delivered by the exporter
      at the Post Office of despatch within six months of the
      payment of duty"
                                                                      8
    At the relevant time, Section 118(2) read as follows:-

      "(2) If, on receipt of any such application, the Assistant
      Commissioner of Central Excise is satisfied that the
      whole or any part of the duty of excise paid by the
      applicant is refundable, he may make an order C
      accordingly and the amount so determined shall be
      credited to the Fund:

       Provided that the amount of duty of excise as
      determined by the Assistant Commissioner of Central D
      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 E
     exported out of India or on excisable materials used in
     the manufacture of goods which are exported out of
     India;

      xxx                        xxx                     xxx          F
      "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 G
     exported out of India."

     13. Shri 8agaria's argument based on the proviso to rule
12(1) would obviously not have any force if Section 118 were
to apply of its own force. It is clear from Section 118(2) proviso    H
788          SUPREME COURT REPORTS              [2015] 4 S.C.R.


A (a) that a rebate of duty of excise on excisable goods exported
  out of India would be covered by the said provision. A reading
  of Mafatlal Industries (supra) would also show that such claims
  for rebate can only be made under Section 11 B within the
  period of limitation stated therefor. This being the case, the
B argument based on Rule 12 would have to be discarded as
  it is not open to subordinate legislation to dispense with the
  requirements of Section 11 B. Equally, the argument that on a
  bond being provided under Rule 13, the goods would have
  been exported without any problem of limitation would not hold
C as the exporter in the present case chose the route under
  Rule 12 which, as has been stated above, is something that
  can only be done if the application for rebate had been made
  within six months. We, therefore, allow the appeal and set
  aside the Bombay High Court judgment dated 12.8.2003.
0
      Nidhi Jain                                  Appeal allowed.