2008 (12) TMI 498 - Commissioner - Customs

Summary

Issues:
1. Whether the claim of refund of unutilized credit is subjected to limitation under Section 11B of the Central Excise Act.
2. Whether the appellant is eligible for a refund of unutilized credit based on various judgments and decisions.
3. Whether the limitation prescribed under Section 11B for claiming a refund within one year from the date of export is applicable in this case.

Issue 1:
The appellant claimed a refund of unutilized credit of Additional Duty of Excise paid on Textiles and Textile Articles. The Assistant Commissioner rejected the refund claim as time-barred under Section 11B of the Act. The appellant argued that the claim of refund is not subject to limitation under Section 11B as it pertains to unutilized credit. The Commissioner analyzed Section 11B, which requires a refund claim to be made within one year from the relevant date. The Commissioner examined the definition of "relevant date" under Explanation (B) of Section 11B to determine the time limit for refund claims in different scenarios. Since no specific relevant date was provided for the refund of credit paid on excisable goods used as inputs, the Commissioner concluded that the one-year limitation period does not apply to the issue at hand.

Issue 2:
The appellant cited various judgments and decisions to support their claim for a refund of unutilized credit. They referenced judgments such as Shree Prakash Textiles, Arcoy Industries, Babu Textiles, and others, which held that refund of unutilized credit is permissible when it is not possible to utilize such credit. The appellant also relied on the judgment of the Hon'ble Karnataka High Court in the case of UOI v. Slovak India Trading Co. Pvt. Ltd., which held that unutilized credit is admissible as cash refund in the absence of express prohibitory provisions. The Commissioner considered these judgments and concluded that the appellant is entitled to the refund based on the legal position and decisions provided.

Issue 3:
The Commissioner further examined whether the limitation prescribed under Section 11B for claiming a refund within one year from the date of export is applicable in this case. The appellant argued that since the issue pertains to unutilized credit of additional duty not linked to the export of the final product, no time limit is prescribed under Section 11B for granting such a refund. The Commissioner agreed with this argument, stating that the one-year time limit does not apply to the refund of unutilized Cenvat credit. Citing legal precedents like Sanghi Textiles Ltd. v. CCE, Hyderabad-III and Anjani Synthetics Ltd. v. CCE, the Commissioner held that the appellant is entitled to the refund, and the one-year time limit will not hinder the refund process.

In conclusion, the Commissioner allowed the appeal by setting aside the impugned Order-in-Original passed by the Assistant Commissioner, Central Excise, Ichalkaranji Division. The decision was based on the interpretation of Section 11B, relevant legal judgments, and the specific nature of the refund claim related to unutilized credit of Additional Duty of Excise paid on Textiles and Textile Articles.