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M/s. ADF Foods Ltd (100% EOU) Versus Commissioner of Central Excise & Customs, Nasik

2015 (6) TMI 375 - CESTAT MUMBAI

Denial of refund claim - Bar of limitation - Whether the time limit of one year has provided under Section 11B is applicable for refund under Rule 5 - Held that:- Refund covers the duty of excise on excisable materials used in the manufacturing of goods which are exported out of India. In the present case, the refund is in respect of duty paid on material used in export goods. As per Section 11B(1), the application for refund should be filed before the expiry of one year from the relevant date. .....

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under Section 11B. The present claim being under Rule 5 and Notification No. 5/2006 - CE (NT) issued there under clearly falls under the said sub-Section (c). In view of this provision, it cannot be said that the time limit of one year as provided under Section 11B is not applicable to refund of Rule 5 of CENVAT Credit Rules, 2004, particularly, when there is a specific para 6 of Notification No. 5/2006-CE (NT) which prescribes the time limit of one year.

GTN Engineering (I) Ltd. (201 .....

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ber (J),J. For the Appellant : Shri Vinod Awtani, CA For the Respondent : Shri N N Prabhudesai, Supdt (AR) ORDER Per: Ramesh Nair: This appeal is directed against Order-in-Appeal No. AKP/10/NSK/2010 dated 19.01.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik wherein the learned Commissioner (Appeals) rejected the appeal filed by the appellant. 2. The fact of the case is that the appellant filed a refund claim under Rule 5 of the CENVAT Credit Rules, 2004 read wit .....

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was filed beyond the time period of one year from the date of export provided Section 11B of the Central Excise Act, 1944, hence time barred. 3. Shri Vinod Awtani, learned C.A. appearing on behalf of the appellant submits that the refund claim was filed under Rule 5 of CENVAT Credit Rules, 2004. It is his submission that limitation provided under Section 11AB is applicable only in respect of refund of Excise duty paid on the goods exported or as the case may be the excisable material used in th .....

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e following judgments - (i) Global Energy Industries Vs. CCE, Ahmedabad - 2010 (262) ELT 627 (Tri.-Ahmd.) (ii) CCE, Ahmedabad Vs. Rangdhara Polymers - 2011 (264) ELT 275 (Tri-Ahmd.) (iii) Elcomponics Sales Pvt. Ltd. Vs. CCE, Noida - 2012 (279) ELT 280 (Tri.-Del.) (iv) STI India Ltd. Vs. Commissioner of Customs & Central Excise, Indore - 2009 (236) ELT 248 (M.P.) (v) Commissioner of Customs & Central Excise, Surat-I Vs. Swagat Synthetics - 2008 (232) ELT 413 (Guj) (vi) Commissioner of Cus .....

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on refund filed beyond one year from the date of export will be come time barred. As regard the judgment relied upon by the learned Counsel, he submits that all the judgment cited by the learned Counsel become over rules in the following judgmens - (i) CCE, Coimbatore Vs. GTN Engineering (I) Ltd. - 2012 (281) ELT 185 (Mad.) (ii) Affinity Express India Pvt. Ltd. Vs. CCE, Pune - I - 2015 937) STR 321 (Tri.-Mumbai) (iii) Affinity Express India Pvt. Ltd. Vs. CCE, Pune -I - 2015 (37) STR 333 (Tri.-Mu .....

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for refund under Rule 5, I find that para 6 of the Notification No. 5/2006 - CE (NT) issued under Rule 5 of the CENVAT Credit Rules provide as under:- "6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994,in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the c .....

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f 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 (including the documents r .....

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lication shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act; Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that .....

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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 Ac .....

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cants 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 incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or i .....

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t 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 have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal .....

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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 goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass .....

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rned 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 e .....

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ereof; (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." From the above clause A of the explanation, refund covers the duty of excise on excisable materials used in the manufacturing of goods which are exported out of India. In the present case, the refund is in respect of du .....

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ion 11B, it is clear that the refund of credit of duty paid on excisable goods used as inputs in accordance with Rule made, or under this Act, is also covered under Section 11B. The present claim being under Rule 5 and Notification No. 5/2006 - CE (NT) issued there under clearly falls under the said sub-Section (c). In view of this provision, it cannot be said that the time limit of one year as provided under Section 11B is not applicable to refund of Rule 5 of CENVAT Credit Rules, 2004, particu .....

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(supra), wherein Hon'ble High Court of Madras held that as under:- "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 [Assi .....

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paid by, him and the incidence of such [duty or interest, if any, paid on such duty] had not been passed on by him to any other person." 12 . By that provision, a claim for refund is made available in case of refund of duty and interest, if any paid on such duty and as far as that provision is concerned, there is no dispute that it is applicable only in case of duty paid and not on the CENVAT credit facilities. As already pointed out, to tide over the situation and also to make eligible fo .....

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ing 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 .....

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r the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original are filed 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)" 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 .....

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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 manufactures of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermedi .....

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mittedly, the respondent has made a claim only invoking Rule 5 of the CENVAT Credit Rules 2004. In that view of the matter, there cannot be any difficulty for us to hold that the relevant date should be the date on which the export of the goods was made and for such goods, refund of CENVAT credit is claimed. 16. The learned counsel for the respondent would rely upon a judgment of the Gujarat High Court reported in 2008 (232) E.L.T.413 ( Guj .) [Commissioner of Central Excise and Customs, Surat - .....

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r 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 .....

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