TaxTMI 
TaxTMI 
2013 (12) TMI 583
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....rein after referred to as 'AED (T&TA')]. For manufacture of cotton fabrics, the appellant manufacture cotton yarn in their factory from cotton and also purchase duty paid cotton yarn from outside in respect of which cenvat credit of basic excise duty and AED (T&TA) is availed. For manufacture of fabrics of manmade yarn, the appellant purchased duty paid manmade fibre out of which yarn was manufactured for captive use and besides this, they also purchased duty paid yarn from outside. In respect of duty paid manmade fibre or manmade yarn purchased from outside, cenvat credit of basic excise duty and AED (T&TA) is taken. The yarn of cotton or manmade fibre manufactured in the factory is cleared entirely for captive use in the manufacture of fabrics. When the fabric is cleared in unprocessed form, which is fully exempt from duty, duty is paid by the appellant at the yarn stage and on the yarn, BED and AED (T&TA) is paid. For payment of AED (T&TA) on that yarn, the available AED (T&TA) credit is utilised. However, except for some domestic sales of unprocessed fabrics, the major portion of the unprocessed fabrics were exported under bond and in respect of such clearances, no duty was pay....
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....cture of final products cleared for export under bond, once it has been admitted by the Department that the inputs in respect of which cenvat credit was availed, were received in the factory, the same are deemed to have been used in the manufacture of final products and one to one correlation between input and the finished product cleared for export is not required to be proved; and (b) While notification issued under Rule 5 provides that the claim is to be filed within the limitation period prescribed under Section 11B, i.e. one year, the relevant date from which the limitation period is to be counted, is not defined for such cases and that the starting point/relevant date for such cases would be when it is determined that the accumulated credit cannot be adjusted for payment of duty on domestic clearances or for any other reasons and accordingly, no part of the claim is hit by limitation. 1.3 Against the above order of the Commissioner (Appeals), the Revenue has filed this appeal. 2. Heard both sides. 3. Ms. Sweta Bector, ld. Departmental Representative assailed the impugned order by reiterating the grounds of appeal in the Revenue's appeal and emphasized that (a) Rule 5 is ....
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....CE, Jamshedpur reported in 2012 (284) ELT 593 (Tribunal-Kolkata), wherein the Tribunal relying upon the earlier decision in the case of Hindustan Motors Limited reported in 1996 (870) ELT 216 held that limitation period prescribed under Section 11 B of the Central Excise Act is not applicable for cash refund of accumulated cenvat credit under Rule 57F(4) of the Central Excise Rules, 1944; that in respect of Rule 5 of the Cenvat Credit Rules, 2004, the same view has been taken by Hon'ble Madhya Pradesh High Court in the case of STI Ltd. Vs. CCE, Indore reported in 2009 (236) ELT 248 (MP) and also by the Tribunal in the case of Elcomponics Sales Pvt. Ltd. Reported in 2012 (279) ELT 280 and that in view of this, there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. Coming to the question of limitation, which is in respect of the claim for April, 2002 to June, 2002 period, notification no.11/2002-CE(NT) dated 1.3.2002 issued under Rule 5 of the Cenvat Credit Rules, 2002 provides that the application in the prescribed form for cash refund of the accumulated credit, which the manufacturer cannot use for paymen....
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....in Hon'ble High Court has held that strict law of limitation provided under Section 11 B of the Central Excise Act would not apply to a claim for cash refund of accumulated credit made in terms of the notification issued under Rule 57F, as in such a case the requirement of filing of claim within the limitation period provided under Rule 11 B is procedural in nature rather than mandatory. Moreover any limitation for filing any claim, appeal etc., prescribed under any law, has two components- the period of limitation during which the claim, appeal etc. is to be filed and the date from which the limitation period is to be counted. If the date from which limitation period is to be counted is missing, it would amount to not prescribing any limitation period. In view of this, we hold that the claim for the period from April, 2002 to June, 2002 is not hit by limitation. 7. Coming to the main question of admissibility of cash refund, Rule 5 of the Cenvat Credit Rules is reproduced below:- Rule 5. Refund of CENVAT credit. -Where any inputs are used in the final products which are cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate produc....
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....t required, and as such, credit taken in respect of any input can be utilized for payment of duty on any final product, in view of the language of Rule 5, the principle of one-to-one co-relationship between input and finished product not being required, will not apply for cash refund of accumulated cenvat credit. However, the credit in respect of inputs used in the manufacture of final products cleared for export under bond or LUT etc. can be utilized for payment of duty on clearances for home consumption of any final product including those made out of other inputs, as, as per the provisions of Rule 3(4), there is no restriction in this regard and only the credit which cannot be utilized for payment of duty on any final products cleared for home consumption would be eligible for cash refund under Rule 5. 8.1 There is one more reason why the Commissioner (Appeals)s view on this point is not correct. The cash refund of accumulated cenvat credit under Rule 5 is equivalent to input duty rebate under Rule 18 of Central Excise Rules, 2002 or excise/service tax duty drawback under Customs & Central Excise Duties Drawback Rules, 1975 of which only one benefit can be availed by a manufac....