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2016 (6) TMI 353 - CESTAT NEW DELHI

2016 (6) TMI 353 - CESTAT NEW DELHI - 2016 (344) E.L.T. 610 (Tri. - Del.) - Claim for refund of Cenvat credit of Additional Duties of Excise [Textiles and Textile Articles] - AED [T&TA] rejected - eligibility of the appellant for refund of AED [T&TA] lying in their Cenvat account from the date of exemption notification - applicability of time limit for the claim under Rule 5 - Held that:- The amount of ₹ 22,54,910/- taken credit in November 2010 the books resulting in their eligibility to .....

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1 cannot be extended to cover a credit available in the books of appellant on 09/7/2004. Even if it is considered that no specific time limit is prescribed for refund claim under Rule 5 in terms of Section 11B, the present claim for this amount after a period of more than six years cannot be covered even applying the provisions of General Clauses Act, 1897. - We find that the appellant is, in principle, eligible for refund of AED [T&TA] under Rule 5 of Cenvat Credit Rules, 2004. However, con .....

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- SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri B.L. Narsimhan and Vipul Agarwal, Advocates For the Respondent : Shri M.R. Sharma, Authorized Representative (DR) ORDER Per. B. Ravichandran :- The appeal is against order dated 06/5/2015 of Commissioner (Appeals), Jaipur rejecting their claim for refund of Cenvat credit of Additional Duties of Excise [Textiles and Textile Articles] - AED [T&TA] in short. The appellants are engaged in the manufacture MM Yarn and are regist .....

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amp;TA] liable during period 01/7/2004 to 08/7/2004. In March 2005 they are filed three rebate claims on the duty amounts [BED, AED [T&TA] and E. Cess]. These rebate claims were rejected by the Original Authority and on appeal the same was allowed. On further appeal by the Revenue, the Revision Authority set aside the appellate order and restored the original order of rejection of rebates. The appellants moved the Honble High Court of Rajasthan which was later dismissed as withdrawn by the .....

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day could not be utilized, the cash refund of the same is entitled to them in terms of Board Circular dated 12/3/2003 and 23/3/2007. The claim was rejected by the Original Authority on 30/5/2012. On appeal, the order was upheld by the Commissioner (Appeals) vide the impugned order. 3. Challenging the findings of the lower Authority, learned Counsel for the appellants mainly submitted on the following grounds :- (a) They are entitled to the refund claim in terms of Rule 5 of Cenvat Credit Rules .....

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ion was upheld by the Hon ble Punjab & Haryana High Court reported in 2012 (275) E.L.T. 189 (P&H). Reliance was also placed on Tribunal decision in STL Products (P) Ltd. vs. CCE, Bangalore reported in 2006 (198) E.L.T. 521 (Tri. - Bang.) ; (c) The refund claim under Rule 5 of Cenvat Credit Rules is not governed by the time limit prescribed under Section 11B of the Central Excise Act, 1944. There is no relevant date prescribed under the said Section to cover the claim filed under Rule 5. .....

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n 2012 (279) E.L.T. 280 (Tri. - Del.). 4. The learned AR contended that the appeal is without merit. Regarding the claim of the appellant for refund under Rule 5, he submitted that accumulated credit of duty on inputs is available only on account of export of final products under bond. In the present case the export was under claim for rebate on the final product and, hence, the claim is not covered by Rule 5. Further he also submitted that AED [T&TA] was exempted both on inputs and final pr .....

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5 (Mad.) has to be followed. The claim in the present case is squarely hit by the time limit. 5. Heard both the sides and examined the appeal records. The admitted facts of the case are that the appellants were availing Cenvat credit on AED [T&TA] paid on inputs which are used in the manufacture of final products which also had duty liability under the head AED [T&TA]. However, w.e.f. 09/7/2004 both inputs and final products were exempted from payment of AED [T&TA]. It is also an adm .....

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ch were claimed as rebate amounts. The AED portion of such amount in credit is ₹ 22,54,910/-. On the date of exemption (08/7/2004), the appellants had a credit balance of ₹ 26,85,740/-. After utilizing a part of the amount for discharging the liable AED [T&TA] [for clearances prior to 08/7/2004], they filed the present refund claim for the remaining amount. 6. The first point for decision is the eligibility of the appellant for refund of AED [T&TA] lying in their Cenvat accou .....

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ude goods which are chargeable to Nil rate of duty. Consequently, the credit of duty paid on inputs is inadmissible only when the final product is exempted from duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944. If the final product is not chargeable to AED, it cannot be said that the final product is exempted from basic excise duty. Further, the condition relating to the restriction on the utilization of such credit lays down that the credit taken of AED [T&TA] .....

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der Rule 5 of the Cenvat Credit Rules, 2002 vide Boards Circular No. 701/17/2003-CX. dated 12/3/2003, will be applicable to AED [T&TA] subject to the conditions and limitations as prescribed under the said rules. 7. That the appellants exported finished goods and accumulated AED [T&TA] in their credit account has not been disputed. The AED [T&TA] was exempt both for inputs and final products with effect from the same day. Keeping in view the scope of Boards clarification, as above .....

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lant has not been disputed by the Revenue. Considering that the accumulated credit could not be utilized in view of the exports by the appellant, the claim merits considering as explained by the Boards Circular (supra). 8. The second point for decision is the applicability of time limit for the claim under Rule 5. Both appellants and the Revenue relied on decided cases of this Tribunal and High Courts to reiterate the applicability or non-applicability of time limit prescribed under Section 11B .....

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f writ-petition filed in Hon ble High Court of Rajasthan, the appellant re-credited the debited account in their Cenvat account. This has been approved by the Jurisdictional Assistant Commissioner. Out of such re-credits an amount of ₹ 22,54,910/- relates to AED [T&TA]. The re-credit was taken in November 2010 and intimated to the Department the same was approved, ex-post facto, by the Jurisdictional officer on 12/5/2011. Refund of AED [T&TA] amounting to ₹ 22,54,910/- could .....

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