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2017 (4) TMI 796 - CESTAT HYDERABAD

2017 (4) TMI 796 - CESTAT HYDERABAD - TMI - Refund claim - rejection on account of time limitation - clearance of goods to SEZ unit - case of appellant is that the limitation prescribed in Section 11B of CEA, 1944 is not applicable to the refund claim filed under Rule 5 of CCR, 2004 read with N/N. 5/2006 or 27/2012 - Held that: - the judgment in the case of GTN Engineering India (P) Ltd. [2011 (8) TMI 960 - MADRAS HIGH COURT], squarely covers the issue, where it was held that the relevant date m .....

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bove appeals being the same are heard together and disposed by this common order. 2. The appellants filed refund claim for different quarters seeking refund of accumulated unutilized CENVAT Credit on various inputs used for manufacture of the goods exported. Refund claim was filed under Rule 5 of CENVAT Credit Rules (CCR), 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012. A show cause notice was issued proposing to reject the refund for the reason that the claim is hit by limitat .....

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d. Counsel for appellant is that the condition in para 4 of the Notification No. 5/2006-CE (NT) along with Rule 5 would go to show that relevant date for computing the period of limitation for filing refund claim is not the date of export of goods. That the relevant date has to be reckoned as the date on which the manufacturer gains knowledge that he is not able to utilize the accumulated credit. He submitted that as per para 4 of the notification, the refund is allowed only in situations where .....

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only when he is not able to use the accumulated credit the right for refund arises. Therefore, the relevant date for computing the period of one year for filing the refund claim, will be the date on which the manufacturer comes to a conclusion that the adjustment of CENVAT Credit involved in the inputs used for export of goods cannot be utilized against the clearances of goods for home consumption by him. To support his argument, he relied upon the judgment in the case of Hindustan Motors Ltd., .....

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alore [2012 (27) STR 134 (Kar)]. That when there are conflicting decisions of two High Courts the decision which is the recent one has to be adopted. The decision of Hon ble High Court of Karnataka having been rendered later on 23.09.2011 is applicable with the facts of the case. That in the said judgment the Hon ble High Court of Karnataka has held that the limitation under Section 11B does not apply for refund of accumulated CENVAT Credit. 6. On behalf of the department, the Ld. AR Sh. Arun Ku .....

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led before the expiry of one year under Section 11B of Central Excise Act, 1944. The appellant has filed the refund claim on 05.09.2013. The authorities below have computed the relevant date/starting point of limitation as the date on which the goods are cleared to SEZ. Thus the refund claims are clearly beyond one year from the date of export of the goods covered in the shipping bills. For example; when the export of goods is on 23.01.2012 the appellant ought to have filed the refund claim on o .....

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uts used in the goods so exported. It is not disputed that the refund claims have been filed beyond one year when computed from the date of shipping bill/date of clearance of goods to SEZ. One of the contention put forward by the appellant is that the limitation prescribed in Section 11B of Central Excise Act, 1944 is not applicable to the refund claim filed under Rule 5 of CCR, 2004 read with Notification No. 5/2006 or 27/2012. Clause 6 of Notification No. 5/2006 gives the condition regarding t .....

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tral Excise Act, 1944(1 of 1944). Section 11B prescribes a time limit of one year from the relevant date for filing refund claim. The meaning of relevant date is given in clause B of the explanation in the said section. The relevant portion is noticed 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 respect of the goods themselves or, as the case may be, the excisable materials used in the manufactu .....

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ting the period of limitation of one year. In all the refund claims filed by the appellant for different quarters the date of filing refund claim (05.09.2013) is beyond one year of the various dates on which goods are received in SEZ (21.04.2011 to 08.03.2012). Thus authorities below have rejected the refund claim observing that the refund claims are beyond the period of one year as prescribed in Section 11B. 8. One of the argument put forward by the Ld. Counsel is that the relevant date should .....

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not able to utilise the accumulated credit is to form the basis (starting point) for computing the limitation period, it will give rise to uncertainity and utter chaos. Therefore, this argument of appellant is not tenable. 9. The issue whether the limitation prescribed in Section 11B is applicable to refund claims filed under Notification No. 5/2006 was subject to analysis by the Hon ble High Court of Madras in the case of GTN Engineering (India) Ltd., (supra). The Hon ble High Court observed as .....

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se] before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty or interest, if any, paid on s .....

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he CENVAT Credit Rules, 2004, entitles for making claim for refund of CENVAT credit and the relevant portion of the said rule reads as under : RULE 5. Refund of CENVAT credit. - Where any input or input service is used in the manufacture 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 inpu .....

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ernment, by notification. 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 14-3-2006 has issued. Clause 6 appendix to the notification reads as under : 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in orig .....

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ntral 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 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 .....

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spect 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 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 .....

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