TMI Blog2013 (12) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of claim within the limitation period provided under Rule 11 B is procedural in nature rather than mandatory - any limitation for filing any claim, appeal etc., prescribed under any law, has two components - the period of limitation during which the claim, appeal etc. is to be filed and the date from which the limitation period is to be counted - If the date from which limitation period is to be counted is missing, it would amount to not prescribing any limitation period - the claim for the period from April, 2002 to June, 2002 is not hit by limitation. Admissibility of cash refund under Rule 5 of the Cenvat Credit Rules – Held that:- Rule 5 of Cenvat Credit Rule, 2002/2004 is different from Rule 3(4) - utilization of cenvat credit for payment of duty on final product, one to one co-relation between the inputs in respect of which canvat credit has been taken and the final product for payment of duty on which the credit is utilized, is not required - credit taken in respect of any input can be utilized for payment of duty on any final product - he credit in respect of inputs used in the manufacture of final products cleared for export under bond or LUT etc. can be utilized fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional excise duty leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1957 [(hereinafter referred to as AEDGSI )], cotton yarn as well as yarn of manmade fibres, attract BED and additional excise duty leviable under Additional Duties of Excise (Textile Textile Articles) Act, 1978 (herein after referred to as AED (T TA )]. For manufacture of cotton fabrics, the appellant manufacture cotton yarn in their factory from cotton and also purchase duty paid cotton yarn from outside in respect of which cenvat credit of basic excise duty and AED (T TA) is availed. For manufacture of fabrics of manmade yarn, the appellant purchased duty paid manmade fibre out of which yarn was manufactured for captive use and besides this, they also purchased duty paid yarn from outside. In respect of duty paid manmade fibre or manmade yarn purchased from outside, cenvat credit of basic excise duty and AED (T TA) is taken. The yarn of cotton or manmade fibre manufactured in the factory is cleared entirely for captive use in the manufacture of fabrics. When the fabric is cleared in unprocessed form, which is fully exempt from duty, duty is paid by the appellant at the yarn sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) against the above order of the Assistant Commissioner, who vide order-in-appeal dated 30.06.2005 allowed the appeal holding that (a) while from plain reading of Rule 5, it is evident that the benefit of cash refund of cenvat credit is allowed in respect of those inputs only, which are used in the manufacture of final products cleared for export under bond, once it has been admitted by the Department that the inputs in respect of which cenvat credit was availed, were received in the factory, the same are deemed to have been used in the manufacture of final products and one to one correlation between input and the finished product cleared for export is not required to be proved; and (b) While notification issued under Rule 5 provides that the claim is to be filed within the limitation period prescribed under Section 11B, i.e. one year, the relevant date from which the limitation period is to be counted, is not defined for such cases and that the starting point/relevant date for such cases would be when it is determined that the accumulated credit cannot be adjusted for payment of duty on domestic clearances or for any other reasons and accordingly, no part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one co-relation between the inputs in respect of which cenvat credit has been taken and which has accumulated and the final product exported is not required to be proved, that the refund claim for the period April, 2002 to June, 2002 is not time barred in view of the judgement of the Tribunal in the case of Tata Motors Ltd. Vs. CCE, Jamshedpur reported in 2012 (284) ELT 593 (Tribunal-Kolkata), wherein the Tribunal relying upon the earlier decision in the case of Hindustan Motors Limited reported in 1996 (870) ELT 216 held that limitation period prescribed under Section 11 B of the Central Excise Act is not applicable for cash refund of accumulated cenvat credit under Rule 57F(4) of the Central Excise Rules, 1944; that in respect of Rule 5 of the Cenvat Credit Rules, 2004, the same view has been taken by Hon ble Madhya Pradesh High Court in the case of STI Ltd. Vs. CCE, Indore reported in 2009 (236) ELT 248 (MP) and also by the Tribunal in the case of Elcomponics Sales Pvt. Ltd. Reported in 2012 (279) ELT 280 and that in view of this, there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. Coming to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reason only, the Tribunal in the case of Hindustan Motors Ltd. (supra) has held that in respect of cash refund of accumulated credit filed under Rule 57F (4), the limitation period prescribed in Section 11 B is not applicable. Same view has been taken by the Hon ble Madhya Pradesh High Court in the case of STI Ltd. (supra), wherein Hon ble High Court has held that strict law of limitation provided under Section 11 B of the Central Excise Act would not apply to a claim for cash refund of accumulated credit made in terms of the notification issued under Rule 57F, as in such a case the requirement of filing of claim within the limitation period provided under Rule 11 B is procedural in nature rather than mandatory. Moreover any limitation for filing any claim, appeal etc., prescribed under any law, has two components- the period of limitation during which the claim, appeal etc. is to be filed and the date from which the limitation period is to be counted. If the date from which limitation period is to be counted is missing, it would amount to not prescribing any limitation period. In view of this, we hold that the claim for the period from April, 2002 to June, 2002 is not hit by lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of (a) any duty of excise on any final product; or While for the purpose of Rule 3 (4) i.e. utilization of cenvat credit for payment of duty on final product, one to one co-relation between the inputs in respect of which canvat credit has been taken and the final product for payment of duty on which the credit is utilized, is not required, and as such, credit taken in respect of any input can be utilized for payment of duty on any final product, in view of the language of Rule 5, the principle of one-to-one co-relationship between input and finished product not being required, will not apply for cash refund of accumulated cenvat credit. However, the credit in respect of inputs used in the manufacture of final products cleared for export under bond or LUT etc. can be utilized for payment of duty on clearances for home consumption of any final product including those made out of other inputs, as, as per the provisions of Rule 3(4), there is no restriction in this regard and only the credit which cannot be utilized for payment of duty on any final products cleared for home consumption would be eligible for cash refund under Rule 5. 8.1 There is one more reason why the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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