TaxTMI 
TaxTMI 
2018 (5) TMI 1415
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....under "Information Technology Software Service" and exporting the service. The appellants have taken cenvat credit on input services and have submitted applications for refund of unutilized cenvat credit accumulated on account of export of service. The adjudicating authority rejected the applications for refund on the ground that the application for refund of cenvat credit was submitted after expiry of one year from the relevant date under Section 11B of the Central Excise Act 1944. The adjudicating authority has adopted the relevant date as the date on which service was exported and no export invoice pertaining to the claim period has been submitted. The adjudication order was challenged before the Commissioner (Appeals) and the Commissioner (Appeals) has passed the common impugned order dated 26.1062016 rejecting the appeals against the adjudication order on the common ground of filing applications beyond the period of one year from the date of expiry of period in terms of Section 11B of the Central Excise Act 1944. The details of the Order-in-Original, the amounts claimed in refund and the period of dispute are summarized below: SI. No. Order-in- Original No./Date ....
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....passed without properly considering the provisions of law as laid down in Section 11B as well as various decisions relied upon by the appellant. He further submitted that Rule 5 of the Cenvat Credit Rules 2004 has not prescribed the period of limitation for submission of the claim for refund of unutilized cenvat credit, He also submitted that Notification No. 5/2006 CE dated 14.03.2006 and 27/2012 CE dated 18.06.2012 have stipulated that the applications for refund have to be filed with the DCCE/ACCE before the expiry of period specified in Section 11B of the Central Excise Act 1944. He further submitted that the impugned order is not correct on the following grounds: (a) Rule 5 of the CCR, 2004 has not prescribed the period of limitation for submission of the claim for refund of unutilized cenvat credit. (b) Notifications 5/2006 CE (NT) dated 14.03,2006 and 27/2012 CE (NT) dated 18.06.2012 have stipulated that the applications for refund have to be filed with the DCCE/ACCE before the expiry of the period specified in Section 11B of the CEA, 1944. (c) Section 11B of the Central Excise Act 1944 prescribes the period of limitation of one year from the relevant date and defin....
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....he Central Excise Act 1944 and refund of unutilized cenvat credit on account of export of goods or services in terms of Rule 5 of the Cenvat Credit Rules, 2004 ought to be entirely different and governed by specific statutory provisions. In the absence of specific statutory provisions, the "relevant date" for computation of one year for submission of the refund claim as stated in Notification No. 27/2012 CE (NT) cannot be supplied by any authority. Since the relevant date from which the period of one year is to be counted is not specified, the same amounts to not prescribing any limitation for submission of the refund claim. (i) It is settled law that the cenvat credit is indefeasible and can be utilized at any time without any time limit. Therefore, the contention that the refund claim for unutilized credit is to be submitted within one year from the date of export of goods or last date of the last month of the quarter is contrary to the cenvat scheme and not based on the statutory provisions. 4.1. He further submitted that the limitation as stated in Notification No. 27/2012 dated 18.06.2012 is impossible of performance because of the absence of statutoril....
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....er (Appeals) has rightly relied upon the decision of the Madras High Court in the case of CCE, Coimbatore Vs. GTN Engineering (I) Ltd, reported in 2012 (281) E.L.T. 185 (Mad.) to hold that Section 11B is applicable insofar as refund of unutilized cenvat credit under Rule 5 of Cenvat Credit Rules, In support of this submission, he further relied upon the following decisions: (a) Hyundai Motors India Ltd. Vs. Dept. of Revenue, Ministry of Finance - 2017 (355) E.L.T. 342 (Mad.) (b) Banswara Syntex Ltd. Vs. CCE, Jaipur-II - 2017 (345) E.L.T. 547 (Tri. -Del.) 5.1. He also submitted that the Division Bench of this Tribunal in the case of Apotex Research Pvt. Ltd. and others Vs. CC, Bangalore and others 2014-TIOL-1836-CESTAT-BANG. has elaborately considered the application of Section 11B for the purpose of claiming refund under Rule 5 of Cenvat Credit Rules. In this regard it is relevant to reproduce the findings of the Division Bench which is reproduced herein for the purpose of reference: "6.15. Issue No. 15: Relevant date for filing refund claim. As regards limitation, according to Notification No. 5/2006-Ce (N. T) dated 14.03.2006, the provisions of Section 11B of Centr....
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....tion 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 for manufacture of excisable goods and therefore, it may not be correct to substitute this with service for the purpose of refund under Rule 5. Therefore, it was submitted that limitation under Section 11B was not applicable at all and therefore, the....
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....find that the Commissioner (Appeals) has rightly relied upon the decision of the GTN Engineering (I) Ltd. cited supra wherein it has been held that Section 11B will be applicable for the purpose of claiming refund under Rule 5 of the Cenvat Credit Rules. Further I find that the Division Bench of this Tribunal in the case of Apotex Research Pvt. Ltd. and others has examined this issue in quite detail and has come to the conclusion that the provisions of Section 11B for the purpose of limitation for claiming refund under Rule 5 of Cenvat Credit Rules 2004 would be applicable. Further I find that this issue has been considered by the Hon'ble Gujarat High Court in the case of Indo-Nippon Chemicals Co. Ltd. Vs. UOI - 2005 (185) E.L.T. 19 (Guj.) and the Hon'ble High Court after considering the provisions of Section 11B as well as the Cenvat Credit Rules has come to the conclusion that Section 11B of the Act is applicable for the purpose of seeking of refund of cenvat credit. In this regard it is pertinent to mention the relevant paras of the judgment of the High Court which is reproduced herein below: "22. This case before us is on the question of applicability of Section 11B ....
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....Clauses (a) to (f) is Clause (c), where on determination of the amount refundable, instead of crediting the same to the Fund, it has to be paid to the applicant. Clause (c), speaks of 'refund of credit of duty paid on excisable goods used as inputs in accordance with the Rules made, or any notification issued, under this Act'. 24. Learned Counsel for the petitioner submits that Clause (c) below the proviso to sub-section (2) cannot be taken aid of for construing sub-section (1) of Section 11B and holding that in the expression 'duty' Modvat credit is included, It is argued that prior to insertion of Section 2A in the Act and as defined under the Rules, 'duty' did not expressly include in its definition, Modvat credit. 25. We have given careful consideration to the submissions made on the effect of Clause (c) below the proviso to sub-section (2) for the purpose of construing the main provision contained in sub-section (1) of Section 11B, which prescribes procedure and limitation for application for refund. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein, which, but for the proviso, wou....
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....dvat credit, provide that the amount refundable under the Modvat Scheme has to be paid to the applicant and it is not to be credited to the Fund. Clause (c) in the proviso thus has limited function for the purpose of sub-section (2) that such refund towards Modvat credit is to be paid to the applicant. Main Section 11B in sub-section (1) definitely covers refund claims on Modvat credit. If that were not so, Clause (c) in the proviso to sub-section (2) would not have been incorporated. We cannot accept the argument advances on behalf of the petitioner by the learned counsel that subsection (1) should be interpreted as not to include refund claims based on Modvat credit and Clause (c) of the proviso to sub-section (2) cannot be taken aid of to read into sub-section (1) such claim as included in the main sub-section (1). If the interpretation as sought to be placed on the provisions on behalf of the petitioner is accepted, Clause (c) of the proviso to sub-section (2) would be rendered meaningless and of no effect. As per settled principles of interpretation of the proviso and its aid to be taken of for interpreting the main provisions, we are persuaded to accept the view point c....