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2016 (3) TMI 998 - CESTAT MUMBAI

2016 (3) TMI 998 - CESTAT MUMBAI - TMI - Refund claim rejected - bar of limitation - Relevant date - rejection on account of limitation as in respect of the period April, 2003 to June, 2004, the refund claim was filed on 20.10.2007 - Held that:- Definition of relevant date as given in clause (a) of Explanation B to Section 11B in respect of export rebate claims, cannot be applied to Rule 5 refund claims. There is no other clause of Explanation B to Section 11B which is applicable to the refund c .....

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ng in Clause 6 of the Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002, thus in view the limitation provision in this notification is meaningless. See M/s Deepak Spinners Ltd. Versus CCE, Indore [ 2013 (11) TMI 1221 - CESTAT NEW DELHI ] - Decided in favour of assessee - Appeal No. E/429/09 - Order No. A/86731/16/SMB - Dated:- 22-3-2016 - Shri Raju, Member (Technical) For the Petitioner : Shri R.K. Maji, Assistant Commissioner (AR) For the Respondent : Ms. Mansi Patil, Advocate ORDER Per: Raj .....

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the said order, the respondent preferred an appeal before the Commissioner (Appeals), who set aside the order passed by the Assistant Commissioner and allowed the appeal filed by the respondents. Aggrieved by the said order, the Revenue is in appeal before this Tribunal. 2. Learned AR for the Revenue relied on the decision of the Hon'ble High Court of Madras in case of GTN Engineering (I) Ltd. 2012 (281) ELT 185 (Mad). In the said decision, while interpreting similar provisions under Notifi .....

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ssistant 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 point out that when a statute empowered for such claim, the said provision must be read to find out as to the relevant date. .....

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nt date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of CENVAT credit. Admittedly, 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 .....

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application before the expiry of period specified under Section 11B of the Central Excise Act, 1944. She argued that Section 11B does not cover the case pertaining to refund of CENVAT Credit under Rule 5 and therefore, the time limit as specified therein in meaningless. In support of her argument, she relied on the decision of the Tribunal in the case of Deepak Spinners Ltd. 2014 (302) ELT 132 (T). She particularly relied on para 6 of the said judgment to assert that similar view has been taken .....

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the procedure being followed and conditions being fulfilled in the notification issued by the Central Government in this regard. During the period of dispute, Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002 prescribed the procedure laying down the safeguards, conditions and limitations. Clause 6 of this notification provides that 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 reg .....

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at all the claims for cash refund of accumulated Cenvat credit must be filed before the expiry of period specified in Section 11B. In this case, admittedly the application for cash refund under Rule 5 in respect of exports made during April, 2002 to June, 2002, had been filed on 17-6-2003 and, as such, according to the department, the cash refunds of accumulated Cenvat credit in respect of export during the period prior to 17-6-2002 is time-barred. Thus, the basic point of dispute in this case i .....

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a 6 of this judgment is reproduced below :- It is not in dispute that claim for the quarter October,? 6. 1998 to December, 1998 was made on 27-7-1999 by invoking Clause 6 of the Appendix to notification issued under Rule 57F. In our view, the strict law of limitation provided in Section 11B of the Central Excise Act would not apply to the claim of refund claimed pursuant to notification issued under Rule 57F. It is, in our opinion, procedural in nature rather than mandatory (see AIR 1992 SC 152) .....

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they were entitled to claim the refund of duty paid on inputs. 7. In my view the judgment of Hon ble Madhya Pradesh? High Court is squarely applicable to this case, more so when the appellant falls within the jurisdiction of Hon ble Madhya Pradesh High Court. This judgment has been followed by Hon ble Gujarat High Court in the case of CCE, Surat-I v. Swagat Synthetics reported in 2008 (232) E.L.T. 413 (Guj.) and also by the Tribunal in the case of Elcomponics Sales Pvt. Ltd. v. CCE, Noida (supr .....

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nvat Rules is of accumulated cenvat credit over a period of time on account of export of goods or services. Further, the assessee does not become entitled to the refund merely upon accumulation but he has to first make an attempt to utilize the said credit for payment of service tax / excise duty and only after he satisfies the conditions of accumulation on account of export-nature of his services and his inability to utilize the same for domestic business, that he qualifies for the refund. Give .....

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he Cenvat Credit Rules. Further, prior to date of crystallization of right to refund, no limitation can start running. 4. I have gone through the rival submissions. Section 11B of the Central Excise Act, 1944 prescribes the relevant date for the purpose of calculating the period of limitation. The relevant date has been defined in Explanation B as under: - (B) "relevant date" means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in resp .....

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rned 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 .....

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erson; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment 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 .....

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