TaxTMI 
TaxTMI 
2021 (8) TMI 79
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.... lower authorities have rejected the refund claim on the ground that as per the amended Notification 5/2006-CE(NT) application of provision of section 11B of Central Excise Act, 1944 was inserted accordingly, the refund claim was rejected on time bar. 2. Shri Pradeep Jain, Learned Counsel appearing on behalf of the appellant submits that since Section 11B does not have a specific provision regarding the relevant date in respect of the refund under Rule 5 of Cenvat Credit Rules, 2004, the time limit of one year for filing refund as prescribed under Section 11B shall not apply for the refund under Rule 5 of Cenvat Credit Rules 2002. He placed reliance on the following judgements: • mPortal India Wireless Solutions P. Ltd. 2012....
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....s a clear provision that the refund claim under Rule 5 should be applied before expiry of the period specified in Section 11B of Central Excise Act, 1944. He submits that in the present case since the refund under Rule 5 is in respect of cenvat credit of inputs used in export goods, the relevant date is from the date of export. However, the appellant have filed the refund claim much after one year from the date of export, therefore, the refund was rightly rejected as time bar by the lower authority. He placed reliance on the following judgements: • Suretax Prophylactics India P. Ltd. 2020 (373) ELT 481 (Kar.) • CCE Coimbatore vs GTN Engineering (I) Ltd. 2012 (281) ELT 185 (MAD) • 2019 (369) ELT 791 (Tr....
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....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)." From the above para 6, it is clear that refund under Rule 5 must be filed before expiry of period specified in section 11B of the Central Excise Act, 1944, as there is specific mention. Learned Counsel submitted that there is no mention about the relevant date for the purpose of rule 5. For ease of reference 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 may make an application for re....
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....cture of export goods. In the present case, the refund under Rule 5 is also in respect of the duty paid on the material used in the manufacture of export goods. Therefore, it cannot be said that there is no mention about the relevant date in respect of refund of the nature in the present case. The identical issue has been considered under various judgements. In the case of Suretax Prophyplastics vs CCE (supra) the Hon'ble High Court has given the following observation: "10. A plain reading of the above Rule would indicate that where any input for input service is used in the manufacture of final product which is cleared for export under Bond or letter of undertaking, the Cenvat credit in respect of the same, so used shall be allowe....
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....012-C.E. (N.T.), dated 18-6-2012; and (iii) Notification No. 14/2016-C.E. (N.T.), dated 1-3-2016. The above referred three notifications would clearly indicate that same has been issued by the Central Government in exercise of the powers conferred under Rule 5 of CENVAT Credit Rules, 2004. Refund of unutilized Cenvat credit under Rule 5 is subject to the above notification and clause (6) of the notification dated 14-3-2006 which has bearing is extracted hereinbelow : "The application 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....
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....mix Plastics vs CCE (supra). This Tribunal clearly made observation that refund claim in terms of Notification No. 5/2006-CE (NT) issued under Rule 5 of Cenvat Credit Rules, 2004 is subject to one year time bar as prescribed under Section 11B of Central Excise Act, 1944. 5. Even same observation was made by this Tribunal in the case of Emerson Innovation Center vs CCE Pune (supra), wherein it was held that in respect of refund under Rule 5 against export of goods Section 11B of Central Excise Act, 1944 is applicable and also held that refund of cenvat credit relatable to export beyond one year is time bar. 6. As regard the heavy reliance made by Learned Appellant in their own case wherein the Order No. A/196-197/WZB/AHD/2010 dated 25.....