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2015 (7) TMI 580 - AT - Central ExciseDenial of refund claim - refund of unutilized credit - CENVAT Credit of Basic Excise Duty and AED (GSI) - Held that:- Refund claims under Rule 57F (13) of Central Excise Rules, 1944 read with notification no. 85/87 pertain to the period prior to 1/4/2000 and these refund claims are of the accumulated AED (GSI) credit in respect of the inputs which had been used in the manufacture of tyres exported under bond without payment of duty. There is no dispute that though during that period, there was no AED (GSI) on the tyres , the appellant in view of the Board's Circular dated 12/3/2003 would be eligible for cash refund of the AED (GSI) credit. In view of the amendment of CENVAT Credit Rules, 2002 in March, 2003 they had utilized the entire amount of AED (GSI) Credit of Rs . 8,71,12,812/-accrued prior to 1/4/2000 for payment of Basic Excise Duty and Special Excise Duty on tyres and subsequently when the utilization of AED (GSI) credit for payment of Basic Excise Duty and Special Excise Duty was restricted by section 88 of the Finance Act, 2004, to that AED (GSI) Credit only which had accrued w.e.f . 1/4/2000, they out of the total pre-1/4/2000 credit of Rs . 8,71,12,812/-utilized earlier, paid back an amount of Rs . 8,49,74,300/-and thus, the amount of Rs . 21,38,512/-still remains utilized for payment of Basic Excise Duty and Special Excise Duty. While the notification no. 85/97 CE(NT) provides that the claim for cash refund under Rule 57F (13) is to be filed within the limitation period prescribed under section 11B and section 11B prescribes the limitation period which is to be counted from the 'relevant date' as defined in that section, neither this notification nor section 11B gives the definition of the 'relevant date' for the purpose of cash refund under Rule 57F (13). While cash refund under Rule 57F (13) becomes admissible only after export of the goods having been made under bond and when the assessee cannot utilize the CENVAT Credit attributable to the inputs used in the manufacture of the goods cleared for export under bond, for payment of duty on the clearances for home consumption, the Rule does not prescribe as to how only the manufacture exporter is to want utilization of the accumulate credit for payment of duty on the clearances for home consumption. Therefore, it may not be correct to treat the date of clearance of the goods for export as the 'relevant date'. - refund claims have to be treated as not hit by limitation. In view of the above discussion, the impugned order is set aside and the appeal is allowed. The appellant would be eligible for cash refund under section 57F (13) only if in terms of the Tribunal's final order dated 14//2015 they reverse the AED (GSI) Credit of Rs . 21,38,512/-in their CENVAT Credit Account - Decided in favour of assessee.
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