TMI Blog2011 (8) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... FOR PETITIONER : Mallika Srinivasan FOR RESPONDENT : M.N.Bharathi ORDER D.MURUGESAN, J. These six appeals are directed against the common order of the Customs, Excise Service Tax Appellate Tribunal, Chennai dated 13.08.2010. By that order, the Tribunal held that in terms of Rule 5 of the CENVAT Credit Rules, 2004, r/w Notification No.5/2006-CE(NT) dated 14.3.2006, the question of limitation to claim refund of CENVAT credit cannot be pressed into service. While setting aside the order of the Commissioner of Central Excise (Appeals), the Tribunal remanded the matters for fresh consideration after giving opportunity to the assessee/respondent to place relevant materials. 2. As to the question whether the claim for refund of the CENVAT credit facilities should be made before the expiry of the period of one year from the relevant 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 Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty paid on inputs and capital goods, which were used in the manufacture of valves exported. For a better appreciation of the factual details relating to the claim, we may refer the following: A.No. Order Sl.No. Date Period for which refund claimed relates. Amount of refund claimed under rule 5 of CCR 2004. Date of receipt of the claim 49/2009/CE 78/2009 dt.31.03.2009 April-06 to June 06 Rs.2,18,866/- 25/01/2008 50/2009/CE 79/2009 dt.31.03.2009 Julyl-06 to Sept 06 Rs.2,82,366/- 25/01/2008 51/2009/CE 80/2009 dt.31.03.2009 Oct-06 to Dec 06 Rs.7,00,633/- 25/01/2008 52/2009/CE 84/2009 dt.31.03.2009 Jan-07 to March 07 Rs.5,60,842/- 04/01/2008 53/2009/CE 85/2009 dt.31.03.2009 Apr-07 to June 07 Rs.5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the period of limitation, the Commissioner (Appeals) has rightly rejected all the six claims of the respondent. The said order has been interfered by the CESTAT by holding that as per Rule 5, no period of limitation could be prescribed in the absence of the notification by the Central Government as to the relevant date. This finding of the Tribunal is contrary to the provisions of the Act and Rules and the notification made thereunder. The learned counsel would further submit that in any case, in the absence of sufficient materials produced before the authorities, the rejection of the claim for refund is well justified and the Tribunal ought not to have remanded the matter for that reason. 9. On the other hand, the learned counsel for the respondent would submit that though the provisions of Section 11B is not strictly made applicable to the refund of CENVAT credit, as it applies only for the claim of duties and interests if any, paid on such duty, in the wake of the provisions of sub-rule 5 and the notification as such, claims could be made. Nevertheless, in the absence of any notification in regard to the relevant date as defined in Section 11B(5)(B) of the Act, the rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice is used in the manufacture of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the, CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i)duty or excise on any final product cleared for home consumption or for export on payment of duty; or (ii)service tax on output service and where for any reason such adjustment is not possible, the manufacturer or provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. 13. In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly, Notification No.5/2006-CE(N.T.) dated 14.03.2006 has issued. Clause 6 appendix to the notification reads as under: 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court reported in 2008(232) E.L.T.413 (Guj.) [Commissioner of Central Excise and Customs, Surat-I v. Swagat Synthetics]. That was a case relating to Sub-Rule (13) of Rule 57F of Central Excise Rules, 1944, which reads as under: (13) Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in according with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilised by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette. The said rule does not prescribe any time limit. In the absence of such prescription as to the limitation, the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation. 17. The learned counsel would also rely upon a Judgment of Madhya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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