TaxTMI 
TaxTMI 
2015 (3) TMI 660
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....acceptable when a similar issue was decided by Honourable High Court of Madras in the case of M/s.GTN Engineering disagreeing with the decision of Honourable Madhya Pradesh High Court s decision? 2.1. The brief facts of the case in a nutshell are as follows: The first respondent/assessee is engaged in the business of manufacturing readymade garments falling under Chapter 62.01 of the Central Excise Tariff Act, 1985. The assessee filed refund claim on 29.3.2005 for Rs. 12,76,088/- being the accumulated Cenvat Credit paid on inputs stating that they were availing Cenvat credit of duty paid on inputs allowed under the Cenvat Credit Rules, 2002 for the clearances made during February and March, 2004. On a scrutiny of the application, it was noticed that the claim was hit by limitation under Section 11B of the Central Excise Act. Since the claim for refund is filed after the expiry of one year period as specified under Section 11B of the Central Excise Act, 1944, show cause notice was issued stating why refund claim should not be rejected on the ground that the same is filed after the expiry of one year and the refund was inadmissible if drawback is allowed under Customs and Centr....
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....e involved in this appeal is with regard to the provisions of Section 11B of the Central Excise Act, it is apposite to refer to the same, which reads as follows: "SECTION 11B. Claim for refund of duty. (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub....
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....f it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation. For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the ....
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....hya Pradesh High Court and held as under: "17. The learned counsel would also rely upon a judgment of Madhya Pradesh High Court at Indore reported in 2009 (236) ELT 248 (MP) (STI India Ltd. V. Commissioner of Customs and Central Excise, Indore). In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944 cannot be made applicable insofar as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based on the rules and the notification which are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act." 8. In the above-said decision, this Court took note of Notification No.5/2006-C.E. (N.T.) dated 14.3.2006 and came to the conclusion that the limitation as prescribed under Section 11B of the Act is applicable in respect of such a claim. 9. In the pre....