TaxTMI 
TaxTMI 
2015 (6) TMI 375
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....als) who rejected the appeal holding that refund claim was filed beyond the time period of one year from the date of export provided Section 11B of the Central Excise Act, 1944, hence time barred. 3. Shri Vinod Awtani, learned C.A. appearing on behalf of the appellant submits that the refund claim was filed under Rule 5 of CENVAT Credit Rules, 2004. It is his submission that limitation provided under Section 11AB is applicable only in respect of refund of Excise duty paid on the goods exported or as the case may be the excisable material used in the manufacture such as export goods. In the present case, the refund was sought in respect of the accumulated CENVAT credit which does not fall under sub-clause (a)(b) of explanation provided under sub-Section (5) of Section 11B. He also submits that since the appellant has claimed the refund of accumulated CENVAT credit, it is neither claim of duty paid on export goods nor claim of duty paid on excisable material used in the manufacture of export goods. The learned C.A. has placed reliance on the following judgments - (i) Global Energy Industries Vs. CCE, Ahmedabad - 2010 (262) ELT 627 (Tri.-Ahmd.) (ii) CCE, Ahmedabad Vs. Rangdhara Pol....
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....ified in section 11B of the Central Excise Act, 1944(1 of 1944)." From the above clear unambiguous provisions, it is clear that in the case of refund under Rule 5 of CENVAT Credit Rules, 2004 application for refund mandatorily to be filed before the expiry of period specified in Section 11B. I have gone through the Section 11B, relevant portion of the Section 11B is reproduced below:- "SECTION 11B. Claim for refund of duty and interest, if any, paid on such duty - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on 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 and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty a....
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.... the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if 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 i....
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....pecial order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty." From the above clause A of the explanation, refund covers the duty of excise on excisable materials used in the manufacturing of goods which are exported out of India. In the present case, the refund is in respect of duty paid on material used in export goods. As per Section 11B(1), the application for refund should be filed before the expiry of one year from the relevant date. As per the definition of 'relevant date' as mentioned above, as per sub-clause A and B where the refund of excise duty paid in respect of the excisable material used in the manufacture of export goods, the relevant period is one year from the date of export. It is also observed that....
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....in case of duty paid and not on the CENVAT credit facilities. As already pointed out, to tide over the situation and also to make eligible for the manufacturer of the final products which is 100% export oriented, Rule 5 of the CENVAT Credit Rules, 2004, entitles for making claim for refund of CENVAT credit and the relevant portion of the said rule reads as under: "RULE 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 manufacturer or provider of output service towards payment of, (i) duty or excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service and where for any reason such adjustment is not possible, the manufacturer or provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be s....
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....f CENVAT Credit. Admittedly, the respondent has made a claim only invoking Rule 5 of the CENVAT Credit Rules 2004. In that view of the matter, there cannot be any difficulty for us to hold that the relevant date should be the date on which the export of the goods was made and for such goods, refund of CENVAT credit is claimed. 16. The learned counsel for the respondent would rely upon a judgment of the Gujarat High Court reported in 2008 (232) E.L.T.413 ( Guj .) [Commissioner of Central Excise and Customs, Surat -I v. Swagat Synthetics] . That was a case relating to Sub-Rule (13) of Rule 57F of Central Excise Rules, 1944, which reads as under: "(13) Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in according with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilised by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such sa....