TaxTMI 
TaxTMI 
2019 (2) TMI 1378
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 31.03.2007 separately for each quarter received in the division office on 5.04.2007 SI. No. Month Amount in Rupees 1. Jan to March, 2005 32,75,262/- 2. April to June, 2005 12,74,162/- 3. July to Sept., 2005 23,14,092/- 4. Oct. to Dec., 2005 35,72,866/- 5. Jan to March, 2006 50,31,291/- Total 1,54,67,673/- 2.1. A SCN proposing rejection of the said five refund claims was issued to the appellants on various grounds including the ground of limitation under Section 11B. The Deputy Commissioner adjudicated the said SCN and rejected the refund claim both on the grounds of merits and limitation. The order of Deputy Commissioner is reproduced here below: "I hereby reject the refund claim of Rs. 1,54,67,673/- (Rupees one crore fifty four lakhs sixty seven thousands six hundred seventy three only) pertaining to five refund claims filed by M/s. Kumarswamy Mineral Exports, Bellary under Section 11B of Central Excise Act, 1944 as made applicable to Service Tax Rules under Section 83 of the Finance Act, 1994 for the reasons discussed in the order." 2.2. Aggrieved by the order, the appellants made an appeal before....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... This Notification prescribes that claims for refunds are to be submitted not more than once for any quarter in a calendar year. Para 6 of the Notification refers to submission of claim before the expiry of the period specified under Section 11B. (d) In the absence of any specific provision with regard to refund of CENVAT credit, the period of one year specified under Section 11B (1) ought to be construed from the date of availing the credit under CCR, 2004 and the date of shipment of goods has no relevance. (e) Thus, the period of limitation of one year for claiming refund of CENVAT credit as envisaged in Notification No. 5/2006-CE(NT)-CE (NT) dated 14.03.2006 would thus reckon from the date of availing CENVAT credit in the CENVAT Account. Since the appellants availing CENVAT credit on 01.04.2007 and submitted the claim for refund on 05.04.2007, the claim is within the prescribed time. (f) They relied upon the decision in the case of Navbharat Industies Vs. CCE, Thane-I, 2006 (199) ELT 148 (Tri. Mumbai). (g) Since they have submitted that the refund claimed on 05.04.2007. They also pray for the interest on the account of delay in payment of the refund amount. 3. We....
X X X X Extracts X X X X
X X X X Extracts X X X X
....should be, in any case, allowed to them in respect of amounts as indicated in table 2 below. The refund has been filed within the period of one year from end of the quarter hence this amount should be allowed to him as refund along with interest. SI. No. Challan No. Period Amount paid in Rupees Date of payment 1. 05 01.12.2005 to 21.12.2005 20,49,666/- 21.01.2006 2. 06 01.01.2006 to 31.03.2006 5,77,721/- 17.02.2006 3. 07 01.02.2006 to 15.03.2006 38,92,898/- 22.03.2006 4. 08 01.03.2006 to 31.03.2006 5,55,048/- 31.03.2006 Total 70,75,333/- 4. Arguing for the Revenue, Ld. AR submitted that: (a) In the case of Commr. of C.Ex. Coimbatore Vs. GTN Engineering (I) Ltd., 2012 (281) ELT 185 (Mad), the Hon'ble Madras High Court has held that relevant date for such refunds should be reckoned from the date of exportation of goods i.e. date when let export is given on the shipping bill. Following the said ratio all the refund claims are barred by limitation under Section 11B. (b) He also placed reliance on the decision in the case of CCE, Cus. & ST., Bengaluru Vs. Span Infotech....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refund claim under Rule 5 of CENVAT Credit Rules, 2004? iii. What will be the "relevant date" for the purpose of filing the refund claims under Rule 5 of CENVAT Credit Rules, 2004? iv. Whether the refund claim can be considered to be filed under protest when the eligibility of CENVAT Credit in respect of which refund application was in dispute in terms of Show Cause Notices issued for denying the same? 5.3 Relevant provisions under Section 11B of Central Excise Act, 1944 in respect of filing and processing of refund claims are reproduced below: "(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 12 A) 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 hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. .........." In view of the decision of Constitutional Bench of Hon'ble Apex Court, holding that the only provision for allowing refund under the Central Excise Act, 1944, are to be made under Section 11B of Central Excise Act, 1944, we have no hesitation in holding that period of limitation as prescribed by the said section will be applicable to all the application for refund filed under the said Act. Thus in respect of the refund claims filed claiming refund of accumulated CENVAT Credit under Rule 5, the period of limitation as prescribed by the Section 11B will be applicable. 5.4 However from reading of the said provision, it is amply clear that the relevant date in respect of such claims of refund under Rule 5 has not be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944)". 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules, 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Section 11B. Thus for a quarter starting from 1st January and ending on 31st March, the next year shall be within the prescribed period irrespective of the date of export for next export order. When Notification itself says that only one refund claim could have been filed for the entire quarter than in respect of all the exports made during the quarter the date of filing refund claim will have to be reckoned from the last date of the quarter. The decision of Madras High Court in the case of GTN (supra) referred to by the learned Authorized Representative to that extent has not considered the condition 2 of Notification No. 5/2006-CE(NT) specifying that only one refund claim could have been filed in each quarter. However if the said condition imposed by the Notification, is read along with para 15 of the Madras High Court then the obvious conclusion is that relevant date for the purpose of filing refund under Rule 5 will be the last date of quarter in which the export is made. 5.6 Larger Bench of Tribunal in the case of Span Infotech (supra) also did not take into account that the refund application for entire quarter was to be treated as one. Further, this judgment spec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he cannot earn credit of service tax paid on input service in the accounts. A person not registered with the department cannot claim refund under Rule 5 of the CENVAT credit rules. Therefore, they rejected the appeal. Aggrieved by the said order the present appeal is filed. 4. Therefore, short question that arises for consideration is whether the authorities were justified in refusing to grant CENVAT credit to which the assessee was legally entitled to on the ground that he is not registered with the department. 5. We have heard the learned counsel for the parties. 6. The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of Rs. 4,36,985/- is accumulated CENVAT credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the CENVAT credit. The assessee is entitled to the refund of the CENVAT credit. Similarly insofar as refund of CENVAT credit is concerned, the limitation under Section 11B does not apply for refund of accumul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla. It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty)" 30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, this Court has held: "Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents." 31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands overruled." 5.9 As far as claim for refund under protest where any agreement with the submissions made by the Ld. AR to effect that refund claim cannot be filed "under protest" only what can contemplate is payment of duty is "under protest" in case where duty is "under protest" period of filing refund claim will not be hit by limitation provided under Section 11B. We do not find any merits in the submissions of the appellants in this regard. 5.10 On the issue of determining the date of filing the refund claim in case where the refund claim originally filed has been returned back by the jurisdictional officer with a deficiency memo to the claimant and the claimant resubmits the refund claim after somet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the settled principles of law and we see no reason to interfere, even if for the sake of argument it is assumed that we should have condoned the delay in filing the present appeal. The assessee had admittedly submitted the application within the prescribed time and if it suffers from any procedural irregularity the Department was under an obligation to require the assessee to submit the requisite documents. Refund is the right of the assessee and should not be taken away by the State especially with the approach of the kind that was adopted in the present case. The appeal is dismissed on merits. Though the decision of the Delhi High Court is indirect conflict with the instructions contained in Chapter Nine of Central Excise Manual issued by the Central Board of Excise & Customs. Para 2.4 of the said Manual Reads as follows: "2.4 It may not be possible to scrutinize the claim without the accompanying documents and decide about its admissibility. If the claim is filed without requisite documents, it may lead to delay in sanction of the refund. Moreover, the claimant of refund is entitled for interest in case refund is not given within three months of the filing of claim. Conseq....