TMI Blog2019 (12) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... ude refund claim on the ground that factory has been closed. The issue was raised before this Tribunal in the first round of litigation which has been rejected by this Tribunal in M/S LATA S HYDROCARBON RESOURCES PRIVATE LTD., VERSUS CC, CE ST, HYDERABAD-IV [ 2016 (12) TMI 321 - CESTAT HYDERABAD] . The order of this Tribunal has not been set aside by any higher judicial forum. In pursuance of the remand by this final order, the original authority has sanctioned the refund claim. Therefore, all proceedings which had begun prior to 01.04.2012 have concluded unimpeded by the unamended Rule 5 of CCR, 2004 for a different amount on a different ground. A separate refund claim was filed after 01.04.2012 which is the issue in dispute. The appellant was not entitled to refund as there was no saving clause when Rule 5 of CCR, 2004 was amended - Further, the period of limitation of one year for filing the refund claim has also been violated as refund claim was filed more than six years after alleged closure of the factory. Appeal dismissed - decided against appellant. - Excise Appeal No. 30068 of 2019 - A/31151/2019 - Dated:- 23-12-2019 - HON'BLE MR. P. VENKATA SUBBA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking the relevant date as the date on which goods entered SEZ. In view of the judgment laid in the case of Celebrity Designs India Pvt Ltd, there is no doubt that the refund claim if filed within one year from the relevant date when the goods are cleared for export, would not be barred by limitation. The appellants have cleared/exported the goods to SEZ. Sub Clause (ii) of Section 11B(B)(a) states that if the goods are exported by land, the date on which such goods pass the frontier would be the relevant date. Therefore the date on which the goods entered the SEZ can be taken into consideration for ascertaining the relevant date. The appellant appears to have accordingly computed the period of limitation and contends that some amount would fall within time. The dates of the goods crossing the frontier/ entering the SEZ as shown in the table, requires verification. Therefore, I am of the view that the matter can be remanded to the original authority to verify whether claim with regard to any export would fall within the period of limitation, if the relevant date is reckoned as the date when the goods entered the SEZ. 11. At the time of hearing the Ld. Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dt.28.08.2017 was issued to the appellant proposing to reject the refund claim on two grounds: (a) there is no provision to refund unutilized Cenvat credit on account of closure of factory and (b) the refund application is barred by limitation as the same is filed nearly six years from the date of closure of factory. The appellant contested both these grounds. After considering their reply, the original authority sanctioned the refund by OIO dt.17.04.2018. Revenue filed an appeal against this order and the first appellate authority allowed the departmental appeal clearly bringing out the provisions in Rule 5 of Cenvat Credit Rules (CCR), 2004 prior to 01.04.2012 and after 01.04.2012. These are as follows: Period prior to 01.04.2012: 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 input service so used shall be allowed to be utilized by the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. Thereby, the authority violated the principles of natural justice. It is not in dispute that the Appellant s factory was closed during the period April 2011 and the refund applications were filed during the period 2009-2010, exports were made during the period January, 2009 June, 2009. It is also not in dispute that from the date of filing the refund application, this Appellant was put to judicial battle till it settled by the decision of Hon ble Tribunal in 2016. The learned Commissioner (Appeals-I) failed to consider these facts while allowing the appeal of the Department. Hence, the order-in-appeal is liable to quashed as it was passed without appreciating the facts of the case. b. The learned Commissioner (Appeals-I) erred in allowing the Department appeal without even noting the decision of Hon ble Apex Court in the case of UOI Vs Slovak India Trading Co. Pvt Ltd., 2008 (223) ELT A 170 (SC). The said decision is squarely applicable to the present case. c. The learned Commissioner (Appeals-I) erred in passing the impugned order without applying his mind on sub-rule 2 of the Rule 5 of Cenvat Credit Rules, 2004 (amended by Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to credits which were accumulated prior to this date the new provisions do not apply. I have also considered the provisions in General Clauses Act, 1977. Section 6 of which reads as follows: 6. Effect of repeal.- Where this Act, or any Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect ; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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