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TMI Blog2025 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise & CGST, Noida. By the impugned order, Commissioner (Appeals) has set aside the Order-in-Original allowed the appeal filed by the appellant-assessee. 2.1 Aggrieved by the above order, revenue has filed the present appeal on the following grounds:- "2.1.1 The period of refund claim in the instant case is April-June 2016. The notification no. 14/2016-CE(NT) dated 01.03.2016, substituted clause (b) of the Paragraph 3 of the Notification No. 27/2012-CE(N.T) dated 18.06.2012 and it is pertinent to mention that by virtue of the said substitution the clarity in calculation of the period of limitation was reached unambiguously. After this substitution, the clause (b) reads as follows:- (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed as under: (i) in case of manufacturer, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944), (ii) in case of service provider, before the expiry of one year from the date of- (a) receipt of payment in convertible foreign exchange, where provision of service had been completed prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l notifications and it would suffice the notifications which would be relevant for the purposes of the present appeals only being noted. They are : (i) Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006; (ii) Notification No. 27/2012-C.E. (N.T.), dated 18-6-2012; and (iii) Notification No. 14/2016-C.E. (N.T.), dated 1-3-2016. The above referred three notifications would clearly indicate that same has been issued by the Central Government in exercise of the powers conferred under Rule 5 of CENVAT Credit Rules, 2004. Refund of unutilized Cenvat credit under Rule 5 is subject to the above notification and clause (6) of the notification dated 14-3-2006 which has bearing is extracted hereinbelow : "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 original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944)." The above referred clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended, ended on 31-3-1956. It is true that under the amending Act by Section 18 of the Finance Act, 1956, authority was conferred upon the Income Tax Officer to assess a person as an agent of a foreign party under Section 43 within two years from the end of the year of assessment. But authority of the Income Tax Officer under the Act before it was amended by the Finance Act of 1956 having already come to an end, the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to Section 18 of the Finance Act, 1956, only a limited retrospective operation i.e. up to 1-4-1956, only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorise the Income Tax Officer to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atest exposition of the same rule see Thirumalai Chemicals Ltd. v. Union of India [(2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458] , SCC at para 29. 11. The effect of the amendment of Section 11-B on 12-5-2000 is that all claims for rebate pending on this date would be governed by a period of one year from the date of shipment and not six months. This, however, is subject to the rider that the claim for rebate should not be made beyond the original period of six months. On the facts of the present case, since the claims for rebate were made beyond the original period of six months, the respondents cannot avail of the extended period of one year on the subsequent amendment to Section 11B. 12. The effect of Section 11B, and in particular, applications for rebate being made within time, has been laid down in Mafatlal Industries Ltd. v. Union of India [[1997) 5 SCC 536] , thus : (SCC pp. 631-32, para 108). "108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal - which is not a departmental organ - but to this Court, which is a civil Court." (emphasis in original) From the law laid down by this decision it is clear that all claims for rebate/refund have to be made only under Section 11-B with one exception-where a statute is struck down as unconstitutional. Further, the limitation period of six months has to be strictly applied." Thus, the irresistible conclusion which has to be necessarily drawn is to the effect that in respect of refund of claims made under Rule 5 of CENVAT Credit Rules, 2004 the provisions of Section 11B of the Central Excise Act would be squarely applicable. Even in respect of the refund claims made under the CENVAT Credit Rules, 2004 insofar as it relates to "service providers" under the Finance Act, 1994, the provisions of Central Excise Act, 1944 as specified in Section 83 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit Rules, 2004, necessarily the refund claims ought to have been filed within one year from the relevant date as specified in Section 11B. In other words, time-limit has to be computed from the last date of the last month of the quarter which would be the relevant date for the purposes of examining if the claim is filed within the limitation prescribed under Section 11B or otherwise...." 4.4 In the case of M/s Span Infotech (India) Pvt. Ltd. 2018 (12) GSTL 200 (T-LB) Larger Bench of this Tribunal has observed as follows:- "9. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of unutilized Cenvat credit, even after adjustment of the same for payment of duty of excise or service tax. The conditions, safeguards and limitations for consideration of such refund claims have been spelt out by the Government through notifications. Notification No. 5/2006 (up to 17-6-2012) and Notification No. 27/2012 (w.e.f. 18-6-2012) (as amended) has specified the conditions in this regard. These notifications specify that such refund claims are to be filed within the period specified in Section 11B. The relevant date specified under the above section leaves no room for doubt as far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the quarter in which FIRC is received since the refund claim is filed for the quarter. 13. Revenue has expressed the view that relevant date in the case of export of services may be adopted on the same lines as the amendment carried out in the Notification No. 27/2012, w.e.f. 1-3-2016. Essentially, after this amendment the relevant date is to be considered as the date of receipt of foreign exchange. While this proposition appears attractive, we are also persuaded to keep in view the observations of the Hon'ble Supreme Court in the case of Vatika Township (supra), in which the Constitutional Bench has laid down the guideline that any beneficial amendment to the statute may be given benefit retrospectively but any provision imposing burden or liability on the public can be viewed only prospectively. Keeping in view the observations of the Apex Court, we conclude that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis." 4.5 In view of the above, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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