TaxTMI 
TaxTMI 
2016 (2) TMI 849
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....id rules on 30.6.2008 seeking refund of such accumulated unutilized credit for the period April 2007 to March 2008 to the extent of around Rs. 21.94 crores. The same was initially rejected by the original adjudicating authority on the ground of nexus as also on the ground of time-bar. However on appeal against the above order, the Commissioner (Appeals) held against the assessee on the point of time-bar but remanded the matter to the original adjudicating authority for examining nexus between input service and output service, for the purpose of refund claim. 3. Both sides are in appeal before us. Revenue is aggrieved with that part of the order vide which the Commissioner (Appeals) has remanded the matter. It is the Revenues contention that the Commissioner (Appeals) has no power to remand. It is also the appellants grievance that instead of remanding, appellate authority should have himself decided but learned advocate fairly agrees that such nexus can be examined only at the level of the original adjudicating authority. Without going into the said legal issue, we find that the Tribunal has admittedly powers to remand. Inasmuch as the said nexus can only be examined at the lev....
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.... of excess credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with the Notification No. 5/2006-C.E. (N.T) dated 14.3.2006. The reading of Rule 5 of the Cenvat Credit Rules makes it clear that an assessee is required to adjust the credit so availed by him by utilizing the same for the purpose of payment of service tax on the output services. Wherever such adjustment is not possible, the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. The notification issued under the said Rule 5, is Notification No. 5/2006-C.E. (N.T.) dated 14.3.2006. Para 6 of the Appendix attached to the said notification is to the effect that such applications are required to be filed before expiry of the period specified under Section 11AB of the Central Excise Act, 1944. On going through the Section 11B, we find that the relevant dates stand defined in terms of the Explanation (b) to the said Section. No doubt, under the various clauses of the said Explanation (b), there is no definition of relevant clause relatable to the refund of excess unutilized credit in t....
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....ed, the CENVAT credit in respect of the input or input service so used shall be allowed." 15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of 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." As seen from the above, the Hon'ble High Court has not accepted the assessee's stand that in the absence of definition of relevant dates in Section 11B, the time limit would not apply. Inasmuch as it was the case of 'export of goods' before the Honble High Court, it was observed that relevant date should be the one on which the export of the goods was made. However, in the present case, it is the export of service and as per Rule 3 (2) of the Export of Services Rules....
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....ration is taken into account." As seen from the above, the relevant date for calculating time limit under Section 11B of the Central Excise Act, 1944 was held to be the date on which consideration for the exported service is received. There is no contra decision shown to us by the learned advocate except Single Member decision of the Tribunal which stands rendered without noticing the Hon'ble High Court's decision. 9. Learned advocate seeks to distinguish the Hon'ble Madras High Court's decision in the case of GTN Engineering (I) Ltd. (supra) and the Tribunal's decision in the case of Hyundai Motor India Engg. (P) Ltd. (supra) on the ground that it was "export of goods" in those cases whereas the "export of service" is involved in the present appeal. However, we find no justification to accept the differentiation made by the learned advocate inasmuch as the same Rule 5, the same Notification No. 05/2006-C.E issued under Rule 5 and the same Section 11B of the Central Excise Act which was the subject matter of the Hon'ble High Court's decision is involved. The learned advocate has not shown us any of the rule or provisions of the law, thus compelling us to lead to a different concl....
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....so take note of the fact that Hon'ble Supreme Court has taken a view that notification is part of statute and therefore we cannot say that it is beyond the power to incorporate a provision like this in the notification. Moreover, if the notification was to reproduce the provisions of section 11B of Central Excise Act without referring to the section, this objection could not have been raised at all. Another argument advanced was that Section 11B would not be applicable for Cenvat credit taken on input service at all. Our attention was drawn to the provisions relating the relevant date under Section 11B(5), Explanation (B). According to this Explanation, "relevant date" means - "(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods - ,"the relevant date would be the date of export. It was submitted that no doubt provisions of Section 11B have been made applicable to service tax matters too. It was submitted that provisions relating to relevant date under Section 11B cited in the notification deals with input service f....
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....fund of accumulated credit under Rule 5 of the Cenvat Credit Rules, 2004. One of the decisions was rendered by Hon'ble High Court of Jharkhand in the case of Commissioner of Central Excise, Jamshedpur vs. Tata Motors Ltd. [2013 (296) E.LT. 7 (Jar.)]. In our view, this decision should not be taken into account in view of the facts that in that case, there was an order of disallowance of credit which had not become final and therefore, refund claim could not have been filed by the assessee at all. Paragraph 8 of the said decision is relevant and reproduced below. "8 We are of the considered opinion that in fact the issue sought to be raised by the appellant-Revenue is already answered by Hon'ble Supreme Court in the case of Samtel India Ltd. v. CCE reported in 2003 (155 14 (S.C.) = 2003-TIOL-40-SC-CX and, therefore, in this appeal no question of law arises including with respect to the other two issues, The objection of the Revenue that in this very proceeding refund could not have been ordered or the claim of the assessee became barred by time, we are of the considered opinion that when the order with respect to disallowance itself had not become the final, before that the....
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....66-HC-AHM-CX. This decision was considered by Hon'ble High Court of Madras in the case of Commissioner of C. Ex., Coimbatore vs. GTN Engineering (I) Ltd. (supra). In Swagat Synthetics case (supra), Hon'ble High Court of Gujarat took note of the decision in Paragraph 16 and observed that Rule 57F (13) of the Central Excise Rules, 1944 does not prescribe any time limitation. In the absence of such limitation, Hon'ble High Court of Gujarat also held that claim cannot be rejected on the ground of limitation. On this ground, Hon'ble High Court of Madras distinguished the decision of Hon'ble High Court of Gujarat. In the case of Swagat Synthetics (supra), Hon'ble High Court of Gujarat has taken note of provisions for refund under Rule 57F of the Rules and Notification No.29/96-C.E. (N.T.) dated 3.9.1996 and in both the rules and the notification, there is no time limit and on this ground, Hon'ble High Court of Gujarat held that there would be no limitation and therefore, refund is admissible. Therefore, the decision of Hon'ble High Court of Gujarat cannot be applied to the facts of the cases before us. We find that Hon'ble High Court of Madras had con....
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....ich the export of the goods was made and for such goods, refund of CENVAT credit is claimed." Learned A.R. on behalf of the Revenue relied upon the decision rendered by Hon'ble High Court of Andhra Pradesh in the case of S.K. Mahaboob Ali vs. Director General Police, C.R.P F., New Delhi [2005 (192) E.L.T. 143 (A.P.) and submitted that when there are decisions taking different views by co-ordinate Benches of Hon'ble Supreme Court, the later is better. On this ground also, the decision of Hon'ble High Court of Madras rendered in the case of C.C.E. vs. GTN Engineering (I) Ltd. (supra) can be applied to the facts of these cases. This was opposed by learned counsels appearing for appellants on the ground that decision considered the issue of the decisions of different co-ordinate Benches of Supreme Court and in this case, the decisions have been rendered by different High Courts, There are four High Courts decisions and if all of them are applicable, in our opinion, the principles of ratio laid down in the case of S.K. Mahaboob Ali vs. Director General Police, C.R.P.F., New Delhi [2005 (192) E.L.T. 143 (A P.) rendered by Hon'ble High Court of Andhra Pradesh are applicab....