TMI Blog2006 (7) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... using the said raw material and filed a refund claim with the authorities under section 11B of the Central Excise Act, 1944. The authorities rejected the said refund claim on two grounds i.e on limitation and on non-applicability of the provisions for refund claim to CVD. On an appeal the Commissioner (appeals) also concurred with the views of the adjudicating authority. Hence this appeal. 3. Learned advocate appearing for the appellant submits that the CVD paid is nothing but duty of excise. It is his submission that the denial of the refund is only on the technical ground and that there is no dispute as regards the consumption of the imported raw materials. It is also submitted that question of the time bar has been wrongly construed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are reproduced as under : Section [11B. Claim for 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 or Deputy Commissioner of Central Excise] before the expiry of [one year] [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 person : Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the rules made, or any notification issued, under this Act; (d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rically states that the rebate of duty of excise on goods exported or on excisable materials used in the manufacture of goods, which are exported, are eligible for refund. Further the explanation also very categorically states that refund includes rebate of duty as well as the duty of excise on excisable materials. In short the statute permits the refund of the duty of excise on materials used in the goods exported. It is to be noted that the appellant is eligible for the benefit of the Modvat/Cenvat credit on the CVD paid by him, and this not disputed by the revenue. If he had availed the Modvat/Cenvat credit then he would have got the refund of the same under the very same provisions of sub-section 2(c) of section 11B. To my mind, rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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