TMI Blog2015 (3) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... cation in Form A along with the proof of due exportation and the relevant extracts of the records maintained under the said rules or the deemed credit register maintained in respect of textile fabrics, as the case may be, in original are lodged with the Deputy Commissioner of Central Excise 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 - Section 11B, prescribes the limitation date and the Notification 11 of 2002 dated 1.3.2002, which the Department failed to enclose in the typed set of papers and in all fairness produced before this Court by the counsel for the first respondent, it is clear that refund application should be filed before the expiry of the period specified in Section 11B of the Central Excise Act. - Here is a case, where the claim for refund is filed after a period of one year and hence, the same is clearly hit by the provisions of Section 11B of the Central Excise Act read with Notification No.11 of 2002 dated 01.03.2002 - Decided in favour of Revenue. - C.M.A.No.133 of 2015 & M.P.No.1 of 2015 - - - Dated:- 5-3-2015 - R. Sudhakar And R. Karuppiah,JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wrong refund claim knowingly incorporating the invoices on which they have claimed the drawback and thus misled the revenue by mis-declaration. The assessee have already done the same mistake of filing the refund claim based on the invoices on which the drawback were claimed on earlier occasions and subsequently the department disallowed such refund claims. In the instant case, the assessee have repeated the same mis-declaration intentionally which is in contravention of the rule 5 of the Cenvat Credit Rules, 2002. Further in the instant case, the claim is filed after the expiry of the one year period as explained in para 5 above. The claim is hit by time bar under Section 11B of the Central Excise Act, 1944. 2.2. Aggrieved by the order of the Adjudicating Authority, the assessee preferred an appeal before the Commissioner (Appeals), who allowed the appeal, thereby directed the Adjudicating Authority to quantify the actual amount of refund eligible to the assessee after deducting the excise portion of the drawback already availed by them. 2.3 Not satisfied with the order of the Commissioner (Appeals), the Department pursued the matter before the Tribunal. 2.4 The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant s account current maintained with the [Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance 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, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; [(e) in the case of a person, other than the manufacturer, the date of purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said rules), the Central Government hereby directs that refund of CENVAT credit of specified duty allowed in respect of inputs used in or in relation to the manufacture of final products which are cleared for export under bond may be allowed subject to the safeguards, conditions and limitations, set out in the Appendix to this notification. APPENDIX 1 . 2 .. 3 .. 4 . 5 . 6. The application in Form A along with the proof of due exportation and the relevant extracts of the records maintained under the said rules or the deemed credit register maintained in respect of textile fabrics, as the case may be, in original are lodged with the Deputy Commissioner of Central Excise 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). 10. In view of the specific provision, Section 11B, which prescribes the limitation date and the Notification 11 of 2002 dated 1.3.2002, which the Department failed to enclose in the typed set of papers and in all fairness produced before this Court by the counsel for the first respondent, it is clear that refund applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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