Page 155 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SURETEX PROPHYLACTICS INDIA PVT. LTD. v. C.C.E., CUS. & S.T., BANGALORE 489

“(b) The application in the Form A along with the documents specified
therein and enclosures relating to the quarter for which refund is being
claimed shall be filed as under :
(i) in case of manufacturer, before the expiry of the period speci-
fied in Section 11B of the Central Excise Act, 1944 (1 of 1944);
(ii) in case of service provider, before the expiry of one year from
the date of -
(a) receipt of payment in convertible foreign exchange,
where provision of service had been completed prior to
receipt of such payment; or
(b) issue of invoice, where payment for the service had been
received in advance prior to the date of issue of the in-
voice.”
1 11. Hon’ble Apex Court in the case of Union of India & Others v. Uttam
Steel Limited reported in (2015) 13 SCC 209 = 2015 (319) E.L.T. 598 (S.C.) has held
that limitation period under Section 11B has to be strictly applied and it would
not be open to subordinate legislation to dispense with the requirements of Sec-
tion 11B. It has been further held :
“10. We have heard the Learned Counsel for the parties and Shri Bagaria,
the Learned Amicus Curiae at some length. There is no doubt whatsoever
that a period of limitation being procedural or adjectival law would ordi-
narily be retrospective in 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 Act with a larger period of limitation comes into force. A
number of judgments of this Court have recognised the aforesaid proposi-
tion :
10.1 Thus, in S.S. Gadgil v. Lal and Co. [AIR 1965 SC 171], this Court
stated : (AIR p. 177, para 13)
“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 31-3-1956. It is true that under the amending Act by Sec-
tion 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 as-
sessment. But authority of the Income Tax Officer under the Act be-
fore 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 so, notwithstanding the fact that there has been no determi-
nable point of time between the expiry of the time provided under
the old Act and the commencement of the amending Act. The legis-
lature has given to Section 18 of the Finance Act, 1956, only a lim-
ited retrospective operation i.e. up to 1-4-1956, 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 at-
tribute to the amending provision a greater retrospectivity than is
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1 Paragraph number as per official text.
EXCISE LAW TIMES  15th August 2020  155