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M/s. Divine Wellness (P) Ltd. Versus CCE & ST- Kanpur

Period of limitation - Refund claim - export of taxable service i.e. health club and fitness centre service - unutilized cenvat credit - Held that:- it is found that the export proceeds were realized through the approved Banking channel by the appellant during the period from 16.04.2010 to 07.12.2010 and the refund claim was filed on 19.12.2011, which is beyond the stipulated time prescribed in section 11B of the Central Excise Act read with the Notification dated 14th May, 2006 issued by the Ce .....

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cise Act read with Rule 5 of the Cenvat Credit Rules. - Decided against the appellant - ST/50873/2014 EX. [SM] - Final ORDER NO. 54114/2015 - Dated:- 10-8-2015 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant : Ms. Vishakha Choudhary, C.A. & Mr. Mohd. Suhail, Advocate Present for the Respondent : Shri Devender Singh, D.R. ORDER This appeal is directed against the impugned order dated 30th October, 2013 passed by the Commissioner (Appeals), Central Excise & Service Tax, Kan .....

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service, on which there is no scope for utilization of cenvat credit, the appellant during the period 01.04. 2010 to 30.09.2010 had filed the refund claim in terms of Rule 5 of the Cenvat Credit Rules 2004 read with Notification No.5/2006-C.E. (N.E.) dated 14th March, 2006, claiming refund of all unutilized Cenvat Credit on the input services used in or in relation to providing the exported output service. The refund application was denied by the authorities below on the ground that the same is .....

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should be computed from the date of issuance of the bank realization certificate. She further submits that the filing of refund claim beyond the stipulated time frame is a procedural condition, for which the substantive right to refund cannot be denied. In this contest, the ld. Consultant has relied on the judgment of Hon ble Madhya Pradesh High Court in the case of STI India Ltd. vs. Commissioner of Cus. & C.Ex., Indore reported in 2010 (19) STR 614 (M.P.). 6. Per contra, Shri Devender Sing .....

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d. reported in 2015 - TIOL - 646 -HC - MAD - CX and Commissioner of Central Excise, Coimbatore vs. GTN Engineering (I) Ltd. reported in 2012 (281) E.L.T. 185 (Mad.) and the judgment of Hon ble Andhra Pradesh High Court in the case of CCE, Hyderabad vs. M/s.Hyundai Motor India Engineering (P) Ltd. reported in 2015- TIOL- 739 HC-AP-ST. 7. I have heard the ld. Counsel for both sides and perused the records. 8. The short question involved in this appeal is as to whether the refund claim has to be fi .....

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I am of the view that there is no infirmity in the impugned order passed by the Commissioner (Appeals) in denying cenvat credit benefit to the appellant on the ground of limitation. The judgment of Hon ble Madhya Pradesh High Court cited by the ld. Consultant for the appellant in the case of STI India Ltd. (Supra) is not applicable to the facts of the present case inasmuch as the said judgment has been departed by the Hon ble Madras High Court in the case of CCE, GTN Engineering (I) Ltd. (Supra .....

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