TaxTMI 
TaxTMI 
2011 (8) TMI 960
X X X X Extracts X X X X
X X X X Extracts X X X X
....t date is of much importance, as we are informed that there is no decision of this Court on the issue, we are inclined to consider the relevant provisions in detail. 3. While admitting the appeal, the following substantial questions of law were framed: "1. Whether on the facts and circumstances of the case, the Tribunal is right in law in setting aside the order order of Commissioner (Appeals), Coimbatore and remanding the matter for fresh consideration notwithstanding the fact that the appellant was given ample opportunity to corroborate their claim of CENVAT Credit attributable to inputs contained in the export products. 2. Whether on the facts and circumstances of the case, the Tribunal is right in law in holding that Section 11 (B)is not applicable to the instant case in so far as credit accumulated in CENVAT credit account is not duty paid by the exporter and it becomes duty only when the credit is debited towards duty payable and therefore Rule 5 of CENVAT credit rules will not be applicable. 3. Whether on the facts and circumstances of the case, the Tribunal is right in holding that Section 11 (B) refers to refund of duty paid and that the App....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7 5. By six individual orders in original dated 31.3.2009, the original authority accepted the claim of the revenue in respect of the claim Nos.84/2009, 85/2009 and 86/2009 on the ground that the credit inputs received after the export clearance are not eligible for refund and accordingly rejected the same. Insofar as the other three claims namely, Claim Nos.78/2009, 79/2009 and 80/2009, the Assistant Commissioner of Central Excise, Customs & Service Tax, rejected the claims on the ground that they are time barred. 6. These orders were taken on appeal before the Commissioner (Appeals), Coimbatore, who, by a common order dated 13.10.2009, held that all the six claims were time barred and on that ground, all the six appeals were rejected as devoid of merits and the orders of the lower authority were sustained. Being aggrieved by the above order, the assesse preferred appeals before the Customs Excise and Service Tax Appellate Tribunal, which set aside the orders of the authorities below and remanded the matter for fresh consideration in the light of the directions made therein. Against the order of the Appellate Authority, these appeals are filed by the Commissioner of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that none of the clauses contained therein would apply for the claim for refund on CENVAT credit. In the absence of the same, the finding of the CESTAT requires no interference. As far as the other findings for remittal viz., the respondent had to produce materials, is concerned, he would submit that the respondent requested the authorities to peruse the materials, because it were voluminous and there was a default on the part of the officers in random verification of the said documents. 11. We have carefully considered the above said submissions. The relevant portion in Section 11B of the Central Excise Act, 1944, reads as under: "11B. Claim for refund of [duty and interest, if any, paid on such duty]- (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on 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 (includin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944)" 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for such claim, the said provision must be read to find out as to the relevant date. Rule 5 specifies that "where any input or input service is used in the ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944, cannot be made applicable insofar as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based on the rules and the notification which are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act. 18. In view of the above, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. Accordingly the same is set aside. 19. As far as the remand is concerned, in view of our findings, the matter has to be remitted back, as directed by the CESTAT for the simple reason that the respondent should be given an opportunity to produce the materials in support of its claim. This remittal is applicable only to Refund Order in Sl.No.84/200....