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2015 (11) TMI 659 - CESTAT NEW DELHI

2015 (11) TMI 659 - CESTAT NEW DELHI - TMI - Refund of CENVAT Credit - refund application under Rule 5 of the Cenvat Credit Rules, 2004, read with the notification no. 17/09-ST dated 7.7.2009 - Bar of limitation - Held that:- The additional documents desired by the Refund Sanctioning Authority were provided by the appellant on 26.11.2012 and 14.12.2012. It is also an undisputed fact that the refund application filed on 2.11.2012 has not been returned by the Central Excise Department to the appel .....

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re submitted subsequently, the principles decided in the case of Arya Exports (2005 (4) TMI 90 - HIGH COURT OF DELHI) squarely applies to the facts of the present case, and thus, refund claim is maintainable. - appellant is eligible for refund of Service Tax under Rule 5 of the Cenvat Credit Rules, 2004 read with the notification dated 7.72009 issued by the Central Government. Therefore, the impugned order is set aside - Decided in favour of assessee. - Service Tax Appeal No. ST/51994/2014 -ST[S .....

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relation to providing the output service i.e. trading of Iron Ore. In case of export of the iron ore, there is no scope for utilization of cenvat credit taken on the input services. Therefore, for the disputed period, the appellant had filed the refund application under Rule 5 of the Cenvat Credit Rules, 2004, read with the notification no. 17/09-ST dated 7.7.2009 issued by the Central Government. The said notification prescribes various conditions which an exporter shall comply for filing the .....

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tes. The refund applciaiton was sought to be denied on the ground that the same has not been filed within one year from the relevant date. The Show Cause Proceedings initiated in this regard was dropped by the Adjudicating Authority, holding that the refund claim has been lodged within the stipulated time prescribed in the said notification. Being aggrieved with the said Adjudication order, the Revenue filed the appeal before the Commissioner (Appeals). The appeal of the Revenue was allowed in t .....

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o him, the additional documents as desired by the Department were submitted subsequently on different dates. He further submits that since the refund application filed by the appellant on 2.11.2012 has not been returned to the appellant and only the additional documents were submitted on 14.12.2012, the said date cannot be construed as the date of filing of the refund application for the purpose of computation of the limitation Period. To justify his above stand, the Ld. Advocate relies on the j .....

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d claim is barred by limitation of time. According to Ld. JCDR, since the refund claim has been lodged in terms of notification dated 7.7.2009, the conditions and the procedures prescribed therein have to be strictly adhere to and no relaxation can be provided for claiming the refund. To justify the above stand, the Ld. Jt. CDR relies on the judgment of Honble Supreme Court in the case of Eagle Flask Industries Limited vs Commissioner of C. Ex, Pune reported in 2004 (171) ELT 296 (SC) and also .....

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plication filed on 2.11.2012 has not been returned by the Central Excise Department to the appellant as not maintainable. Since, the refund claim has been filed by the appellant on 2.11.2012 and that application has not been returned by the Department and the same has been considered for the purpose of refund of the Service Tax, the objection raised by the Revenue that the claim is barred by limitation of time is not sustainable in view of the decisions cited by the Ld. Advocate for the appellan .....

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