TMI Blog2015 (6) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2011 (8) TMI 960 - MADRAS HIGH COURT) time limit of one year is applicable in the case of refund under Rule 5 and Notification No. 5/2006 - CE (NT) issued there under. In view of above settled position, I am of the considered view that refund of the appellant filed after statutory time limit of one year is not admissible being time barred. Therefore, the impugned order is sustainable and the same is upheld. - Decided against assessee. - Appeal No. E/623/10-Mum - - - Dated:- 10-3-2015 - Ramesh Nair, Member (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 Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Supdt. (A.R.) reiterates the findings of the impugned order. He further submits that as per para number 6 of Notification No. 5/2006-CE (NT). It is clearly provided that the refund application under Rule 5 should be submitted before the expiry of the period specified under Section 11B of the Central Excise Act, 1944. As per this statutory provision 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.-Mumbai) He submits that in view of the above cited judgments, it is settled that the time limit of one year has provided under Section 11B is applicable in the present case. 5. I have carefully considered the submissions made by both sides. 6. The fact in this case is that refund claim for the period June, 2007 was filed on 04.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the whole or any part of the duty of excise and interest, if any, paid on such duty 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 and interest, if any, paid on such duty 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 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 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 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 outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As regards the various judgments relied upon by the appellant, I find that the judgment of Swagat Synthetics (supra) of Hon'ble High Court of Gujarat has been distinguished and judgment of STI India Ltd. (supra) of Hon'ble High Court of Madhya Pradesh has been departed and in the latest judgment of Hon'ble High Court of Madras in the case of GTN Engineering (I) Ltd. (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 [Assistant Commissioner of Central Excise or Deputy Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracts 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 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-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It 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 poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a Judgment of Madhya Pradesh High Court at Indore reported in 2009 (236) E.L.T. 248 (M.P.) [STI India Ltd., v. Commissioner of Customs and Central Excise, Indore] . In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 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 refund, he has to satisfy the limitation clause as provided under Section 11B of the Act. 18. In view of the above, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. Accordingly the same is set aside. From the above judgment it is clear that Hon'ble High Court of Madras has considered both the judgments of Swagat Synthetics (supra) and STI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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