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The Commissioner of Central Excise Versus M/s. Celebrity Designs India Pvt. Ltd., Customs, Excise and Service Tax Appellate Tribunal

2015 (3) TMI 660 - MADRAS HIGH COURT

Denial of refund claim - Refund claim of accumulated CENVAT Credit - Claim barred by limitation - Duty drawback claim - Tribunal, by following the decision of the Madhya Pradesh High court in the case of STI India Ltd. V. CCE reported in [2008 (10) TMI 246 - HIGH COURT OF MADHYA PRADESH AT INDORE] dismissed the appeal holding that the limitation prescribed under the provisions of Section 11B of the Central Excise Act will not apply to the case - whether the refund claim is filed within the perio .....

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lication 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 an .....

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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. For the Appellant : Mr. P. Mahadevan Standing Counsel For the Respondents : Mr. Karthikeyan for 1st respondent JUDGMENT (Delivered by R. Sudhakar,J.) This appeal is filed by the Department challenging the Order dated 05.03.2014 made in Final Order No.40209 of 2014 passed by the Customs, Excise and Service .....

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r issue was decided by Honourable High Court of Madras in the case of M/s.GTN Engineering disagreeing with the decision of Honourable Madhya Pradesh High Court s decision? 2.1. The brief facts of the case in a nutshell are as follows: The first respondent/assessee is engaged in the business of manufacturing readymade garments falling under Chapter 62.01 of the Central Excise Tariff Act, 1985. The assessee filed refund claim on 29.3.2005 for ₹ 12,76,088/- being the accumulated Cenvat Credit .....

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claim should not be rejected on the ground that the same is filed after the expiry of one year and the refund was inadmissible if drawback is allowed under Customs and Central Excise Duties Drawback Rules, 1995. The assessee filed a reply stating that the claim was filed on quarterly basis and requested for sanction of refund after deducting the amount on which duty draw back was claimed. The Adjudicating Authority after hearing the assessee and the considering the provisions of law, rejected t .....

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tionally 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 a .....

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ise Act will not apply to the case. 3. Aggrieved by the said order of the Tribunal, the Department is before this Court raising the questions of law mentioned supra. 4. Heard learned counsel appearing for the assessee and perused the materials placed before this Court. 5. It is not in dispute that the issue involved in this case is with regard to limitation. The short question arises for consideration in this appeal is whether the refund claim is filed within the period prescribed under Section .....

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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 that where an application for refund has been made before the commencement .....

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er of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he 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 .....

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nufacturer, 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 incidenc .....

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ouse of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to ha .....

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cial Gazette.] [Explanation. For the purposes of this section, - (A) refund includes 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) 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 .....

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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 Gazet .....

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tment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 7. In an identical circumstance, this Court considered the above-said issue in the case of Commissioner of Central Excise, Coimbatore V. GTN Engineering (I) Ltd. reported in 2012 (28 .....

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ct, 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 refu .....

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ion of the said notification reads as follows: Refund of Cenvat credit under Rule 5 of Cenvat Credit Rules Procedure In exercise of the powers conferred by rule 5 of CENVAT Credit Rules, 2002 (hereinafter referred to as 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, conditi .....

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