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2017 (10) TMI 839 - MADRAS HIGH COURTRefund of unutilized CENVAT credit - time limitation - levy of AED (T& TA) - Rule 5 of CCR, 2004 - N/N. 31/2004-CE dated 09.07.2004 - Held that: - the claim has to be made before the expiry of one year from the payment of duty. But, it could be seen from the claim of refund of duty filed by the respondent, the same was made only in the year 2008 ie., the respondent assessee made the claim after a period of three years from the date of abolition of AED (T & TA), which is a clear time barred claim after the expiry of time limit for refund. Since the levy of Additional Excise Duty (T & TA) was abolished with effect from 09.07.2004, the unutilised balance credit stands lapsed and the claim of refund cannot be entertained after a period of nearly three years from the date of abolition of Additional Excise Duty (T & TA). It is clear from the records that after the abolition of Additional Excise Duty (T & TA) with effect from 09.07.2004, the unutilised balance credit lapsed, which ought to have been claimed within three years. The refund claim should have been filed within one year from the date of abolition, that too only when the respondent proves that the unutilised credit was on account of export. Hence, Rule 5 of CENVAT Credit Rules, 2004, is not applicable to the refund claim seeking refund in cash for the unutilised balance credit, that too after it was lapsed on 09.07.2004. The refund claim has to be filed within one year from the date of export as per Section 11 (B) of the Central Excise Act, 1944. Thus, it is evidently clear that the refund claim is not maintainable as time barred and hit by limitation. When the Central Excise Act, 1944 under Section 11(B), as amended, prescribes time limit for making any claim for refund of any duty of excise, the CESTAT ought to have concurred with the well considered view of the Adjudicating Authority. Moreover, CESTAT has not dealt with the aspect of limitation in the context of provisions under Section 11(B) of the Central Excise Act, 1944. Thus, the final order passed by the (CESTAT) that the unutilised credit of Additional Excise Duty is refundable merely on the basis that there is no provision in law to deny refund, deserves to be set aside. Appeal allowed - decided in favor of appellant.
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