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2016 (11) TMI 478 - CESTAT NEW DELHI

2016 (11) TMI 478 - CESTAT NEW DELHI - TMI - 100% EOU - Rejection of refund claim - accumulated cenvat credit - Rule 5 of the Cenvat Credit Rules - N/N.5/2006 (CE) NT dated 14.3.2006 - limitation bar - the claim should be filed in respect of Export Oriented Units on monthly basis - Held that: - in terms of clause 6 of the notification 5/2006 read with section 11B, refund claims pertaining to the period falling within one year from the date on which the refund claim has been filed are to be held .....

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l is targeted against the Order in Appeal dated 31.1.2011 passed by the Commissioner (Appeals), Indore. 2. The issue involves rejection of refund claim filed for refund of accumulated cenvat credit. The claim stand filed for the period November, 2008 to September, 2009 under Rule 5 of the Cenvat Credit Rules. The claims have been filed in terms of Notification No. 5/2006 (CE) NT dated 14.3.2006 . The claims filed on 8.12.09 have been rejected on the ground of time bar vide order in original date .....

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aims can be filed without any time limit, inasmuch as the notification does not specify any such time limit. The refund is to be granted in accordance with the procedure laid down in this notification which is a self contained code. In any case, no relevant date has been given under section 11B of the Act to cover the present case. Consequently, the refund will be available to them without time limit. He supported his views with the following case laws: (i). Good Year India Ltd. vs. CCE, Delhi I .....

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y of the period specified in section 11B of the Central Excise Act, 1944. He further relies on the decision of the Hon ble High Court of Madras in CCE, Coimbatore vs. GTN Engineering (I) Ltd. [2012 (281) ELT 185 (Mad)] . 6. The appellant is a 100% EOU. Since there was no DTA sale, they filed the refund claim on 8.12.09 for refund of accumulated cenvat credit pertaining to the period November, 2008 to September, 2009. The claim stand rejected by the authorities below on account of time bar. The a .....

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al products or the output services in value terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) The claim is filed by Export Oriented Unit, the claim for such refund may be submitted for each calendar month. Clause 2 of the notification specify that refund claims are to be submitted not more than once per quarter. Further in respect of EOUs there is a provision for filing of claims for each calendar mon .....

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se Act, 1944. Section 11 B does not specify any separate relevant date for determining one year period to cover cases of refund under Rule 5. What can be a mechanism to decide the relevant date has been given by Hon ble High Court in the case of GTN Engineering (I) Ltd. The relevant portion of the order is reproduced below: 13. In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly, Notification No. 5/2006-C.E. (N.T.), dated .....

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al 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 Commissio .....

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hat where any input or input service is used in the manufactures of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed. 15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be th .....

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