TMI Blog2011 (11) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... go out of the scheme and become a DTA unit. In this letter, they submitted the details of stock of inputs, packing material etc and duty payable on them as on 18.08.08. This letter was replied on 5.12.08 and the appellant was asked to pay duty which they paid and intimated to the Department on 11.04.09. Thereafter, No Dues Certificate was issued on 18.05.09 and de-bonding letter was issued by Development Commissioner on 30.06.09 and from 1.7.09, the appellant started functioning as DTA unit. The appellant filed refund claim of ₹ 1,73,322/- on 30.09.09 under Rule 5 of CENVAT Credit Rules, 2004, on the ground that they were not in a position to utilize the CENVAT Credit paid by them at the time of de-bonding due to reason that the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides for maintenance of separate records which also provides for non-availability of credit in the case of exempted goods, is not applicable in the case of export under bond. He submits that they were exporting the goods under bond. Therefore, credit was admissible. As regards other two claims, he submits that the refund of ₹ 30,562/- was filed on 11.09.09 and the appellant had exported the goods on 26.09.09 and therefore the claim was not hit by limitation. He submits that the stand taken by the Department that the appellant was required to file the refund claim every month being 100% EOU, was only a procedural requirement and therefore in terms of statute, it was wrong to reject the claim on limitation. He submits that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of ₹ 1,73,322/- does not arise. This is where the facts are peculiar to this case and uniqueness come into picture. In this case, duty was paid on the inputs lying in stock as on 18.8.08, and duty was paid in April 2009 because of correspondence between Department and the appellant. The fact remains that when the duty was paid, the unit had not become a DTA unit. The unit became DTA only from 1.7.09 and started operating as DTA only from 1.7.09. Therefore, when the duty was paid on input, the appellant was still a 100% EOU and because it was 100% EOU, the appellant was eligible for CENVAT Credit if duty was paid on packing material, input etc. This is supported by the fact that even Revenue has not taken a stand that CENVAT Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al had held that period of 1 year for the purpose of limitation under Section 11B of Central Excise Act, 1944 has to be counted from the date on which final conclusion is reached that the credit cannot be utilized. In this case also, it is on 1.7.09, the appellant reached the conclusion that credit cannot be used since after becoming a DTA unit, the Peanut Butter was an exempted product unlike the case when appellant was a 100% EOU. Therefore, refund claim of ₹ 1,73,322/- is admissible to the appellant. 5. As regards refund of ₹ 30,562/- and ₹ 30,498/-, the Commissioner (Appeals) has taken a view that credit could have been utilized by the appellant. However, if the credit could have been utilized by the appellant, why ..... X X X X Extracts X X X X X X X X Extracts X X X X
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