V.C. Daga, J.
1. The short question sought to be raised in this petition relates to an interpretation of Section 11B of the Central Excise Act, 1944 ('Act' for short) which came to be amended with effect from 12th May, 2002.
Factual background
The factual background giving rise to the present petition is in narrow compass:
2. The undisputed facts are that the petitioners are engaged in the business of manufacturing and exporting steel products including galvanized corrugated sheets to 120 countries. In respect of exports affected from time to time, the petitioners filed rebate claims for a rebate of central excise duty paid in respect of the exported goods.
3. The present petition is concerned with two shipments of goods which were exported in 1999 and in respect whereof the petitioners claimed rebate. The petitioners exported galvanized corrugated sheets under shipping bills dated 20th May, 1999 and 10th June, 1999 and filed refund claim along with supporting documents to substantiate their claim that subject goods were, in fact, manufactured in their factory.
4. The Deputy Commissioner of Central Excise (Refund), Mumbai issued show cause notice dated 7th March, 2001 to the petitioners calling upon them to show cause why the rebate claims in question should not be rejected as they were filed after expiry of the stipulated period of six months from the date of shipment resulting in contravention of provisions of Section 11B of the Act. The petitioners replied to the said show cause notice vide their letter dated 29th March, 2001 contending that since export of goods in question was not disputed nor there was any dispute regarding realisation of foreign exchange, the rebate being incentive to the exporters, their claim may not be denied on ground of delay which was not intentional.
5. The petitioners in support of their submission also relied upon subsequent amendment to Section 11B of the Act; whereby a period of limitation was extended from six months to one year from the date of shipment, to contend that their claims are well within the extended period of limitation. The petitioners also submitted in their reply that had they delayed the submission of their claims by another two months (i.e. second half of May, 2001), the claims would have been within limitation in view of extension of period for filing rebate claim.
6. The above contentions did not find favour with the adjudicating authority. With the result, delay in preferring claims was held to be fatal to the rebate claims. It came to be rejected holding that law of limitation had to be followed strictly and that the authorities under the Act did not have power to condone delay in cases of refund of rebate claim.
7. Aggrieved by the aforesaid order, the petitioners moved an appeal before the Commissioner of Central Excise (Appeals) at Mumbai. The said appellate authority while appreciating substantive reasons allowed the appeal vide its order dated 15th February, 2002 holding that extended period of one year was available to the petitioners and that both the rebate claims were not time-barred as they were filed well within one year from the date of exportation. In other words, it was held that the operation of extended period was retrospective in nature and, therefore, it was applicable to the petitioners' case.
8. Revenue not being satisfied with the above order preferred revision application as provided under Rule 9 of the Central Excise (Appeals) Rules, 2001 ('Rules, 2001' for short) before the Government of India on the ground that the order of the learned Commissioner (Appeals) was erroneous and, that the extended period of one year was not available to the petitioners since at the material time the limitation in terms of Section 11B was only six months and that there was 39 and 18 days delay respectively; in respect of rebate claims. The revisional authority, however, vide its order dated 16th August, 2002 allowed the revision application holding that the extended period of limitation of one year was not available to the petitioners and rejected the rebate claims solely on the ground of limitation.
9. Aggrieved by the aforesaid order of the revisional authority, the petitioners have filed this petition under Article 226 of the Constitution of India to challenge the above order dated 16th August, 2002.
Submissions
10. The petitioners in support of their case raised set up and canvassed various factual and legal contentions, which Revenue tried to rebut. The same can be categorised as under:
(A) Show cause notice was contrary to law and without jurisdiction.
(B) Provisions of Section 11B operates retrospectively or at any rate it has retroactive effect.
(C) Provisions of Section 6 of the General Clauses Act, 1897 has no application to the facts of the instant case-
(A) Show cause notice was contrary to law and without jurisdiction :
11. The petitioners submit that until the time that a show cause notice was issued by the Customs Department, there was no dispute between the petitioners and the said Department with regard to the petitioners' entitlement to rebate. The dispute arose only upon the issue of the show cause notice dated 7th March, 2001 and issue was, thereafter, joined with the petitioners putting in a reply on 27th March, 2001, contesting the show cause notice. It is thus submitted that the validity of the show cause notice ought to be judged by examining the law as it stood on the date of issue of the notice. On 7th March, 2001, Section 11B stood amended and rebate claim could be made within one year of the relevant date. According to the petitioners, undisputedly, the petitioners rebate claims filed on 28th December, 1999 were filed well within one year from the relevant date i.e. from the date of shipping bills.
12. In the submission of the petitioners, had they put in their application for rebate claims in relation to the exports effected on 20th May, 1999 and 10th June, 1999 say on 13th May, 2000, then their applications would have been treated as being within time. It is thus submitted that on the date of the issue of the show cause notice, the period of six months stood deleted and was substituted by one year. On the date of show cause notice, there was no provision providing that refund applications made on or before the amendment were to be treated on the basis of the old law. In absence of any such provision, it is submitted that the Revenue was bound by the amended provision which provided for a period of one year. The show cause notice inasmuch as proceeds contrary to the law as it stood on the date of the show cause notice (7th March, 2001) as such the show cause notice was illegal and without jurisdiction. The petitioners relied upon the judgment of this Court in Godrej & Boyce . v. Union of India - : 1984(18)ELT172(Bom) ; wherein this Court has held that the show cause notice must be judged as on the date of issue of the notice. In the submission of the petitioners, this legal position has been fortified by the Apex Court in the case of Mysore Rolling Mills Pvt. Ltd. v. Collector of Central Excise - : 1987(28)ELT50(SC) ; wherein the Apex Court was pleased to hold that the jurisdiction of the Department to act under a particular rule would depend upon the provision of law when the rule is invoked. In the circumstances, according to the petitioners, it would not be open to the Revenue to ignore the statutory changes introduced by the Finance Act, 2000 and disregard the substituted provision which allowed a rebate claim to be filed within one year from the relevant date.
13. In reply to the above contentions, Revenue submitted that the amendment to Section 11B of the Act made with effect from 12th May, 2000 is only prospective and applicable only to future claims. Since in the instant case, petitioners filed their application for refund/rebate claims, after the period of limitation was over, their claims were not tenable being beyond the period of limitation. Secondly, Revenue contended that in case of Section 11B the cause of action for the petitioners had ceased with filing of the rebate claims. The subsequent amendment had nothing to do with the disposal of the rebate claims. In other words, any amendment subsequently made pending the disposal of application had no effect on pending applications. The contention of the Revenue thus is that a lis or dispute commenced the moment an application for rebate was filed, as such the provision of law holding field on the date of application would be relevant and not the date of issue of show cause notice.
14. In rejoinder, learned Counsel for the petitioners contended that lis or dispute commenced the moment rebate claim was filed is contrary to law. He pressed into service the Blacks Law Dictionary which defines the word 'lis' mean 'controversy or dispute; a suit or action at law'. According to the petitioners, there was no 'lis' when the application for rebate was filed inasmuch as at this stage the respondents had not asserted their position and had not adopted a stand hostile to the rebate application. As such the petitioners reiterated that the dispute arose only on 7th March, 2001 and, therefore, amended Section 11B of the Act would get attracted to the rebate claims in question.
(B) Provisions of Section 11B operates retrospectively or at any rate it has retroactive effect:
15. The petitioners submit that Section 11B is entirely a procedural provision. The substantive right to claim refund or rebate arises elsewhere. For example, in the present case, the petitioners' substantive right to claim rebate arises under Rule 12 of the Central Excise Rules (corresponding to Rule 18 of the Central Excise Rules, 2002). In other words, while the substantive right to claim a rebate or refund has not been in any way touched or affected by the amendment introduced by the Finance Act, 2000 to Section 11B, all that has been altered is a provision relating to the procedure for claiming refund of duty. In other words, petitioners submit that provisions relating to limitation are treated as being a matter of procedure as such statutes dealing with merely matters of procedure to be presumed to be retrospective unless such a construction is textually inadmissible. The reliance is placed on Shahid Ganj v. S.G.P. Committee and C. Beepathuma v. Velasari Shankaranarayana - : [1964]5SCR836 . The petitioners also placed reliance on the other judgments of the Apex Court in the case of Shyam Sunder v. Ram Kumar - : AIR2001SC2472 and Hitendra Vishnu Thakur v. State of Maharashtra - : 1995CriLJ517 to support their contention in this behalf. In the aforesaid backdrop, the petitioners submit that the amendment to Section 11B being in the nature of procedural law ought to be given retrospective effect and that benefit of the amended provision ought to have been extended to the petitioners.
16. In reply, learned Counsel for the Revenue contended that when the statutes of limitation takes away or affects the existing right or obligation they are not merely procedural. Learned Counsel for the Revenue on the above premise submits that with the loss of limitation, right was substantively created in favour of Revenue to deny the rebate claims claimed by the petitioners. In that view of the matter, the amendment extending period of limitation cannot be treated as procedural so as to give it retrospective effect and take away the substantive right to deny rebate claims accrued in favour of Revenue. It is further submitted that the respondents being creatures of Statute viz. the Central Excise Act, 1944, they are very much governed by the statutory provisions of limitations. Reliance in this behalf was placed on the judgment of the Apex Court in the case of Union of India v. Kirloskar Pneumatics Company Limited : 1996(84)ELT401(SC) ; wherein the Apex Court ruled that the authorities created under the Act are governed by the statutory provisions of limitations.
17.the rejoinder, alternatively, the petitioners submit that even if newly inserted Section 11B providing for limitation of one year is to be treated as having prospective force, nevertheless, it has 'retroactive effect'. The provision does not affect in any way any substantive or vested right of the petitioners. The substantive right of the petitioners to claim rebate depends upon whether exports were effected, since there is no dispute regarding the petitioners entitlement on merits the petitioners are well within their right to contend that the substantive right to claim refund arose in their favour. The amendment without affecting the existing substantive right merely provides an expanded period for availing remedy. In other words, even if the amendment is held as not having retrospective effect, it is submitted that the amendment would nevertheless have retroactive force covering refund application/rebate claims falling within one year from 12th May, 2000 and would entitle the petitioners to relief. The petitioners tried to spell out this principle from the judgment of the Apex Court judgment in the case of Dilip v. Mohammed Azizul Haq - : [2000]2SCR280 .
(C) Provisions of Section 6 of the General Clauses Act, 1897 has no application to the facts of the instant case :
18. The petitioners submit that Section 6 of the General Clauses Act, 1897 sought to be pressed into service by Revenue does not have any application to the facts of the present case. The amendment to Section 11B by which the words 'six months' were substituted by the words 'one year' do net constitute the repeal of a Central Act. Hence the principles laid down in Section 6 would have no application. What ought to be applied are the rules of interpretation of statutes referred to above. Petitioners submitted that in any event Sub-clauses (a) to (e) of Section 6 are qualified by the words 'unless a different intention appears'. The petitioners submit that for the reasons more particularly set out above, there is a clear intention on the part of the Legislature to extend the benefit of larger period of one year to the parties who make a rebate claim in respect of entitlement for rebate/refund that arose within one year from 12th May, 2000. The petitioners submit that the application of Section 6 of the General Clauses Act has not been taken up either in the show cause notice or any of the adjudication orders or in the affidavit of reply filed by the respondents. The provisions of Section 6 have neither been invoked nor apply to the facts of the present case. In the submission of petitioners, in any case, none of the sub-sections of Section 6 are attracted to the present case. The substitution of one year did not affect any right, privilege or obligation or liability acquired, accrued or that was incurred under the pre-amended statute. Indeed, the amended provision expands the procedural machinery for applying for rebate within a period of one year. This expanded procedure cannot be abridged or taken away by the application of Section 6. The principles laid down by the Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. Amritlal & Co. - : AIR2001SC3580 , Kolhapur Canesugar Works Ltd. v. Union of India, : 2000(119)ELT257(SC) and Shyam Sunder's case (supra) were pressed into service to support the petitioners submissions. In nutshell the submission is, the amended law expanded the window and procedure to obtain refund and, so long as the rebate application relating to shipments within one year from 12th May, 2000, such applications could not be rejected.
19. In reply to the above submissions, learned Counsel for the Revenue submitted that where any Central Act made after the commencement of the General Clauses Act repeals any enactment, then, unless different intention appears, the repeal shall not affect any right acquired under any enactment so repealed. He thus submits that so far as Revenue is concerned, the right to deny claim was accrued in favour of the Revenue and, therefore, the amended provision cannot be allowed to be pressed into service unless different intention appears. He submits that there is no intention in the amended Section so as to suggest any contrary intention.
20. The learned Counsel for the petitioners submitted that in the case of Mysore Rolling Mills Pvt. Ltd. (supra), the Apex Court considered an amendment to Rule 9 of the Central Excise Rules (corresponding to Section 11A) whereby the said rule was amended by (i) substituting the period of six months for the erstwhile period of three months and by (ii) substituting the period of five years for the erstwhile period of one year in cases of suppression. The Apex Court, inter alia, held that the amended rule was intended to relate back for the larger period from the date jurisdiction under the rule was invoked. According to the petitioners, the Apex Court in turn held that the provision was retrospective in operation and the once the new rule came into existence at jurisdiction under the rule was invoked, a period up to five years preceding the date of the issue of the notice was covered.
21. Petitioners also relied upon the circular issued by the Central Board of Excise and Customs dated 19th October 2000; wherein the Board has directed that the Supreme Court judgment in the case of Mysore Rolling Mills (supra) would apply to the amendment to Section 11A introduced by the Finance Act, 2000. According to the petitioners, there is no material distinction between the amendments to Section 11A and Section 11B of the Act in so far as substitution of the period of limitation is concerned. The respondents having accepted the position that the amendment to Section 11A must be given retrospective operation, there is no justification for concluding that the amendment to Section 11B should be given prospective application.
22. Lastly, learned Counsel for the petitioners while summing up his submissions tried to rely on the judgment of the Apex Court in the case of Easland Combines v. Collector of Central Excise, Coimbatore - : 2003(152)ELT39(SC) ; wherein the Apex Court while interpreting Section 11A ruled that it was intended to relate back to the larger period from the date jurisdiction was invoked. In that case Section 97(b) of the Finance Act, 2000 had amended Section '11A and substituted the words 'one year' for the words 'six months' wherever they occurred. Similarly, in the submission of the petitioners, Section 101 of the Finance Act, 2000 amended Section 11B of the Act by substituting the words 'one year' for the words 'six months' at both places occurred, therefore, the interpretation in respect of Section 11B ought to be consistent with the interpretation put by the Apex Court in respect of Section 11A of the Act.
23. Learned Counsel for the petitioners while concluding his submissions contended that it is well-settled that the Court must avoid an interpretation that leads to, absurd consequences. Reliance is placed on Bhatia International v. Bulk Trading S.A. : [2002]2SCR411 . In his submission, the interpretation advanced by the respondents leads to absurdity. He submits that interpretation advanced by the petitioners is fair, certain and results in predictable consequences. He, further, submits that where two interpretations are possible, the interpretation in favour of the assessee should be preferred. He reiterates that assuming that two views on interpretation of amended Section 11B are possible, one favourable to the assessee should be preferred in the matter of taxation. He placed reliance on the judgment in the case of Sun Export Corporation v. Collector of Customs : 1997(93)ELT641(SC) . Petitioners thus prayed for making rule absolute in terms of the prayer clauses of the petition.
The issues
24. The basic issue raised in this petition is whether the right to claim rebate of duty under Rule 12 of the Excise Rules lapses if the application for rebate of duty is not made within the period of limitation prescribed under Section11B of the Act? In other words, the issue is whether the failure to file application for rebate of duty within the period of limitation debars the exporter from claiming the rebate of duty even if the claim falls within the extended period of limitation as per amendment to Section 11B of the Act?
Analysis of submissions :
25. Undisputed facts of the case are that in respect of two consignments of goods exported on 20th May, 1999 and 10th June, 1999 the petitioners were entitled to rebate of central excise duty amounting to Rs. 14,18,311/- and Rs. 14, 26,077/- respectively under Rule 12 of the Central Excise Rules, 1944. Section 11B of the Act (prior to amendment by Finance Act, 2000) provided that the application for rebate of duty shall be made within six months from the date of shipment, however, in the present case the applications were filed beyond time by 39 days and 18 days respectively. The above facts are set out in a tabular form for easy reference as follows: -
Sr. No. Date of ShipmentDue Date of ApplicationDate of ApplicationBeyong time byDuty Amount (Rs.)
1.20-5-9920-11-9928-12-9939 days14,18,311/-2.10-6-9910-12-9928-12-9918 days14,26,077/-
26. Since above applications were filed beyond time, the same were rejected by the adjudicating authority as time-barred. Although, the appellate authority allowed the claims of the petitioners, the revisional authority set aside the order of the appellate authority and confirmed the order of the adjudicating authority. Hence, this writ petition is filed.
27. Under the Act, duty paid in excess of the amount payable on excisable goods is liable to be refunded. Similarly, when the goods on which appropriate amount of the excise duty is paid in accordance with law are exported, the statute provides for rebate of duty as an incentive to export goods. The rebate of duty is given with a view to boost exports and thereby earn valuable foreign exchange to the country. In both the cases, the refund application is required to be made within the period of limitation prescribed under the statute.
28. Prior to the insertion of Sections 11A and 11B to the Act, the claim for refund of duty and rebate of duty were governed by Rules 11 and 12 of the Central Excise Rules, 1944. Under Rule 11, the manufacturer who has paid excise duty in excess could claim refund of duty within the time prescribed therein. Under Rule 12, the manufacturer on export of excisable goods could claim rebate of duty subject to such conditions and limitations as may be prescribed in the notification issued under Rule 12.
29. With effect from 17th November, 1980, Sections 11A and 11B were inserted to the Act. Section 11A provides limitation for recovery of duties not collected or short collected by the Revenue. Section 11B deals with the limitation for claiming refund of duty and rebate of duty.
30. In this petition, we are concerned with the limitation for claiming rebate of duty. For the sake of convenience the relevant portions of Rule 12 and Section 11B (prior to amendment by Finance Act, 2000) are extracted herein-below :-
'RULE 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;
(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 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 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, Maritime (Commissioner of 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 complied with.'
'Section 11B. Claim of refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the (Assistant Commissioner of Central Excise) before the expiry of six months (from the relevant date) (in such form and manner) as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other persons.'
31. From the aforesaid provisions, it is clear that for availing the rebate of duty, the primary requirement is the export of excisable goods. Rule 12 specifically provides that once it is established that the goods have been actually exported then even if some or all of the requirements set out in the notification issued under Rule 12 are not fulfilled, the exporter will be entitled to rebate of duty. Under Rule 12, the claim for rebate of excise duty accrues as soon as the excise duty paid goods are exported. Section 11B of the Act provides limitation within which the claim for rebate of duty is required to be made. Neither Rule 12 nor Section 11B contemplates that if the application for rebate of duty is not made within the period of limitation, the accrued right to rebate of duty lapses. Therefore, if the application for rebate of duty is not made within the period of limitation prescribed under Section 11B only, the remedy is barred and not the substantive right to claim rebate of duty accrued under Rule 12. In other words, the limitation prescribed under Section 11B only deals with the procedural law and not the substantive law.
32. In present case, when the exports were made in the year 1999 the limitation for claiming rebate of duty under Section 11B was six months. Thus, for exports made on 20th May, 1999 and 10th June, 1999 the due date for application of rebate of duty was 20th November, 1999 and 10th December, 1999 respectively. However, both the applications were made belatedly on 28th December, 1999, as a result, the claims made by the petitioners were clearly time-barred. Section 11B was amended by Finance Act, 2000 with effect from 12th May, 2000, wherein the limitation for applying for refund of any duty was enlarged from 'six months' to 'one year'. Although the amendment came into force with effect from 12th May, 2000, the question is: whether that amendment will cover the past transactions so as to apply the extended period of limitation to the goods exported prior to 12th May, 2000?
33. We would now proceed to examine whether the provision of Section 11B is retrospective as urged by the learned Counsel for the petitioners. The The Apex Court, in the case of State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84 while interpreting Section 6 of the General Clauses Act held as under :
'.................It seems that Section 6(3) would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation lo take its place. Where an old law has been merely repealed, then the repeal would not affect any previous right acquired nor would it even affect a suit instituted subsequently in respect of a right, previously so acquired. But where there is a new law which not only repeals the old law, but is substituted in place of the old law, Section 6(e) of the General Clauses Act is not applicable and we would have to fall back on the provisions of the new Act itself.
These observations could not undoubtedly rank higher than mere 'obiter dictum' for they were not at all necessary for purposes of the case, though undoubtedly, they are entitled to great respect. In agreement with this dictum of Sulaiman, C.J., the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, Section 6 of the General Clauses Act will undoubtedly be attracted.
But no such inadvertence can be presumed where there has been afresh legislation on the subject and if the new Act does not deal with thematter, it may be presumed that the Legislature did not deem it fit to keepalive the liability incurred under the old Act. In our opinion the approach ofthe High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room forexpression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions ofthe new Act, but only for the purpose of determining whether they indicate a different intention...........'
In the above judgment the Apex Court emphasised that when there is repeal followed by fresh legislation on the same subject the Court has to look, into the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
34. In Maxwell on Interpretation of Statutes, 12th Edn. the statement of law in this regard is stated thus :
'Perhaps no rule of construction is more firmly established than thus -'that a retrospective operation is not to be given to a statute so as to impair an existing rights or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, involves another and subordinate rule, to the effect that a statute is not to be construed so as to have greater retrospective operation than its language renders necessary.'
35. The Apex Court in the case of K. Eapen Chako v. The Provident Investment Company (P) Ltd. - AIR 1976 SC 2610 observed in Para 37 thus, -
'A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former state of the law is to be considered and also the legislative changes contemplated by the statute. Words not requiring retrospective operation so as to affect an existing statutory provision prejudicially ought not to be construed. It is a well-recognized rule that statute should, interpreted if possible so as to respect vested rights. Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from enactments merely affect procedure and do not extend to rights of action. See Re Joseph Such & Co. Ltd. (1875) 1 Ch D 48. If the Legislature forms a new procedure alterations in the form of procedure are retrospective unless there is some good reason or other why they should not be in other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties it will be held to apply prima facie to all actions, pending as well as future.'
36. The Apex Court in the case of Anant Gopal Sheorey v. The State of Bombay - : 1958CriLJ1429 observed as under :
'The question that arises for decision is whether to a pending prosecution the provisions of the amended Code, have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225 Colonial Sugar Regining Co. Ltd. v. Irving 1905 AC 369 (A). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.'
37. In the case of Hitendra Vishnu Thakur (supra), the Apex Court laid down the ambit and scope of an amending Act and its retrospective operation as follows: (SCC p. 633, para 26)
'(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly - defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.'
38. In our view, in view of the settled legal position of law, the contention of the petitioners that the limitation for filing claim for rebate of duty prescribed under Section 11B is procedural and, therefore, the amendment to the procedural law would apply retrospectively deserved to be accepted.
39. In the case of Maxwell v. Murphy (1957) 96 CLR 261 Dixon, C.J. formulated general rule in the following words :
'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 ChD (62). 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done (at p. 69).'
The aforesaid observations were followed by the High Court of Australia in Roadway v. The Queen (1990) 169 CLR 515 and observed as under :
'4. The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against ret-receptivity in the case of Statutes which affect mere matters of procedure. In deed, strictly speaking where procedure alone is involved a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation but when they deal only with procedure they are apt to be regarded as an exception to the rule and if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.'
40. The Apex Court in the case of Kolhapur Canesugar Works Ltd. (supra) also noticed position of common law and observed as under :
'At common law, the normal effect of repealing a statute or dealing a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision.'
It is relevant to note that in the present case the question of divesting Revenue of their vested right does not arise since no order refusing to grant refund of the amount had been passed on the date when Section 11B was amended.
41. As stated hereinabove, right to rebate of duty accrues under Rule 12 on export of goods. That right is not obliterated if the application for rebate of duty is not filed within the period of limitation prescribed under Section 11B. In fact, Rule 12 of the Excise Rules empowers the excise authorities to grant rebate of duty oven if some of the procedural requirements are not fulfilled. Even proviso (a) to Section 11B(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 11B the amount of excise duty is refunded to the exporter even if the duty element is passed on by the exporter. Thus, reading Rule 12 with Section 11B of the Act it becomes abundantly clear that the limitation prescribed under Section 11B is only procedural and does not affect the substantive right to claim rebate of duty under 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 time prescribed under the statute. Thus Section 11B 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, there is no reason to presume 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 substantive rights existing on the date when the amended provisions came into force. Accordingly, we hold that the limitation of one year provided by amendment to Section 11B 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 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 10th June, 1999 i.e. within one year from 12th May, 2000 and hence, the amended limitation period of one year would apply to the case of the petitioners.
42. At this juncture, it will not be out of place to notice the observation made by the Apex Court in the case of Kolhapur Canesugar Works Ltd (supra); wherein the Apex Court in para 38 observed as under :
'In the present case, as noted earlier, Section 6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof.'
The Apex Court in unequivocal terms held that where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. Therefore, if the proceedings can be initiated as per the amended provisions of law then we do not find any difficulty in holding that the right of the petitioners to claim rebate was intact and same could have been claimed by the petitioners under the amended provisions of Section 11B of the Act. If that be so, no useful purpose would be served by directing the petitioners to withdraw the present petition and file under the amended provisions of statute. Thus, taking overall view of the facts and circumstances of the case, the submission advanced by the petitioners deserves to be accepted.
43. Heavy reliance was placed by the Counsel for the petitioners on the decision of the Apex Court in the case of Mysore Rolling Mills Pvt. Ltd. (supra). In that case, the Apex Court held that the amendment to the rule with effect from 6th August, 1977 from one year to five years was retrospective and was intended to relate back and would cover a period of five years. Although, the above decision indirectly supports the case of the petitioners, we would not like to draw support from the above decision for more than one reasons. Firstly, we are concerned with the interpretation of amendment to Section 11B whereas the Apex Court in the case of Mysore Rolling Mills Pvt. Ltd. (supra) was concerned with amendment to Section 11A. Secondly, Section 11A deals with the right of the Revenue to initiate action for recovery of the excise duty nor levied or paid or short-levied or short-paid or erroneously refunded; whereas Section 11B deals with the claim for refund of duty. Thirdly, under Section 11A the right to recover duties not levied or not paid or short-levied or short-paid or erroneously refunded and the limitation to recover the same cannot be segregated; whereas the right to rebate of duty arises independently under Rule 12 of the Central Excise Rules and Section 11B prescribes only the limitation to claim rebate of duty. Therefore, we are of the opinion that the decision of the Apex Court in the case of Mysore Rolling Mills Pvt. Ltd. (supra) is distinguishable on facts.
44. At this stage, we think it would not be out of place to make reference to the judgment of the Apex Court in the case of Easland Combines (supra) on which heavy reliance was placed by the petitioners. It would not be out of place to mention that Section 11A deals with substantive right to recover short-levied or short-paid duty; whereas Section 11B deals with procedural law and any alteration in procedural law would be applicable retrospectively so as to cover all cases falling within the altered period of limitation. Apart from the above, case of Easland Combines (supra) has also now been referred to a Larger Bench in the case of ITW Signode India Ltd. v Collector of Central Excise reported in : 2003(153)ELT501(SC) . Under these circumstances, we think it fit to decide this matter on independent interpretation of Section 11B of the Act.
45. Alternatively, once it is held that the limitation under Section 11B is procedural, then any amendment to such procedural law can be said to have retroactive effect if not the retrospective effect. The amended Section 11B, 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 in that view of the matter, the case of the petitioner's 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 reasons recorded, we do not think it necessary to dwell upon other contentions raised by the petitioners.
46. In the result, petition is allowed. Rule is made absolute in terms of the prayer Clauses (a) and (b) of the petition with no order as to costs.