TMI Blog2018 (11) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cenvat Credit Rules, 2004. The time limit as prescribed in section 11B of Central Excise Act shall not be applicable in the case at hand - appeal dismissed - decided against Revenue. - Excise Stay No. : 75558/2016 AND Excise Appeal No. 76351/2016 - S.O/75786/2018 & FO/76544/2018 - Dated:- 7-6-2018 - Shri P.K.Choudhary, Member (Judicial) and Shri Bijay Kumar, Member (Technical) Shri D. Haldar, A.C. (A.R.) for the Appellant (s) Sri Ravi Raghavan, Advocate Sri H. Shukla, C.A. for the Respondent (s) ORDER Per Shri Bijay Kumar Revenue has filed the present appeal against the impugned Order-in-Appeal No. 02/RAN/2016-17 dated- 05.05.2016 passed by the Commissioner of Central Excise Service Tax, Ranchi wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second quarter of July, 2014 to Sept. 2014 and all these cases appeared to be not available for consideration for refund as per the provisions of Section 11B of the Central Excise Act, 1944 and read with the Notification No.27/2012-CE (NT) dated-18.06.2012. The show cause notice also alleged that the quantification of CENVAT Credit during the quarter ending Sept., 2014 included the CENVAT Credit on import of services and availed during the quarter ending July, 2014 to September, 2014 which was disputed through show cause notice dated 24.07.2015 and such disputed CENVAT credit cannot be part of the refund and therefore should have been excluded from the quantification. After following the due process of law the said refund claim was rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Vs. CCE [2009 (236) ELT 248 (M.P.) and in the case of Global Food Industries Vs. CCE [2010 (262) ELT 627 (Tri-Ahmd.)]. 4.3 It was also contended by the Ld. Advocate that the refund under Rule 5 is controlled by the time when goods are cleared for export and not from the physical export of the goods; that in the present case the goods have been cleared for export under LUT in terms of Notification No. 42/2001-CE (NT) dated-26.06.2001. As per the condition prescribed in the notification, the exporter is required to file the claim within the six months from the date on which the goods has been cleared from the factory/warehouse; that in the present case the refund claim against AREI No. 150/2014 dated-30.09.2014, are not time barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms duty only and not of the excise duty under draw back rules. In this regard the reliance was placed on the following decisions : (i) CCE Vs. Sabharwals Medicals Pvt. Ltd. [2017 (357) ELT 1171 (Tri.-All) wherein it is held that refund under Rule 5 of the Credit Rules cannot be denied in case the exporter has claimed drawback of the customs duty component under the Drawback Rules. Similar view was taken in the case of (ii) Meghdoot Pistons Pvt. Ltd. Vs. CCE[2011 (263) ELT 610 (Tri.-Del) and (iii) CCE Vs. Meghdoot Pistons Pvt. Ltd. [2006 (201) ELT 398 (Tri-Del.) . 4.5 Further, there is no shipment as contended by the Department in respect of ARE-1 No. 132 and 133 and their corresponding shipping bill reveals that the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the case of refund of unutilised Cenvat credit under Rule 5 of the Cenvat Credit Rules,2004. Thus the time limit as prescribed in section 11B of Central Excise Act shall not be applicable in the case at hand, we are in agreement with the Commr. Appeal on the finding regarding non adjustment of the duty demand, which have not attained finality against the order of the refund as held in the case of : (i) Commr. of Central Excise , Bangalore-III Vs. Steela Rubber Works (Unit-III)[2012 (275) ELT 404 (Kar.) ii) KEC International Ltd. Vs. Commr. of Central Excise and Service Taxm Bhopal[2014 (310) ELT 615 (Tri-Del.) iii) BSNL Vs. CCE [2014 (36) (STR-Delhi) 7. As far as availing of Draw Back by the appellant is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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