2017 (7) TMI 1033

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....o without payment of central excise duty by availing benefit of Notification No.6/2006 dt. 01/03/2006 and No.6/2007 dt. 01/03/2007. The appellant was also availing the CENVAT credit facility of duty paid on inputs and input services. Appellant had availed CENVAT credit of the duty paid on common inputs and used to reverse an amount of 8% or 10% as the case may be in respect of the goods cleared by them claiming exemption under Notification No-6/2006 and 6/2007. During the period in question i.e. October 2008 to December 2008, appellant reversed an amount of Rs. 38,78,585/- as an amount payable @ 10% for the clearances made on the value of the goods cleared without payment of duty by using common inputs on which CENVAT credit was availed. Su....

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.... eligible for the refund claim on the date when the clients debited back the additional amount which has been accepted on price escalation by their clients and hence the provisions of Section 11B would directly apply. He has no other grievance as to that except the fact that the provisions of Section 11B of Central Excise Act, 1944 as held by the first appellant authority is not applicable in the case and that Rule 6(3)(b) of the CENVAT Credit Rules do not consider the amount as duty paid towards adjustment @ 10% for the value of the exempted goods cleared, as duty. If it is not a duty, there is no time limit for filing the refund claim is the proposition of the [earned counsel. 4. Learned AR reiterates the finding of the lower authorities....

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....al before the Tribunal he is taking diagonally opposite stand stating that it could not be considered as duty as it not collected as duty. I notice that the first appellate authority has clearly recorded that how the refund claim is hit by limitation if it is held that the said amount has to be construed as duty and the provisions of Section 11B of the Central Excise Act needs to be applied in its full force I concur with the same. The findings of the first appellant authority are in paragraph nos. 15, 16 and 17 which are reproduced b low:- 15. In the instant case, the original authority rejected the claim on the grounds of limitation as it was found that the claim was preferred beyond one year from the date of payment of amount. There is ....

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....buyer) as sought to be advanced by the appellant. The relevant date, in the instant case is the date of payment of amount by the appellant i.e. 31.03.2009 and therefore the claim preferred on 27.06.2011 was rightly held as hit by limitation of time by the original authority. Hence, I find no infirmity in the impugned order of rejection of subject refund claim on the grounds of limitation. ... .... .... 7. It can be seen from the above reproduced finding that they are very much in consonance of the law and more so of the provisions of Section 11B of the Central Excise Act, 1944. Appellant's claim that their refund claim is within the limitation as provided under Section 11B is based upon only argument that their client has debited their....