2008 (6) TMI 147 - AT - Central Excise

Credit availed on input services remained utilized on account of exports clearances Not. No. 11/02 has been superseded by Not. No. 5/06 dated 14-3-2006 to enable refund of unutilized input service credit held that even if refunds are filed before amendment, and satisfies every requirement of Rule 5 and the notification issued thereunder, the refunds cannot be rejected as there was no condition in notification/rules that such refund would apply only in respect of exports made after 14-3-06

Summary

Issues:
Refund claim under Rule 5 of Cenvat Credit Rules, 2002 for unutilized input service credit related to exports made prior to 14-3-2006. Requirement of filing monthly refund claims by Export Oriented Units (EOUs) under Notification No. 5/2006-CE (NT).

Analysis:
1. The appellant, M/s. Sandoz Private Limited, filed a refund claim of Rs. 43,28,000 under Rule 5 of the Cenvat Credit Rules, 2002 for unutilized input service credit on export clearances of finished goods. The Revenue contended that prior to 14-3-2006, there was no provision for refund of input service credit for export service providers. A show cause notice was issued to deny the refund claim, alleging non-compliance with the conditions of Notification No. 5/2006-CE (NT) dated 14-3-2006.

2. The appellant argued that the Tribunal had previously ruled in the case of WNS Global Services that if a refund claim satisfies all requirements of Rule 5 and related notifications, it cannot be rejected based on the date of exports. The appellant also contended that the use of "may" in the notification regarding monthly filing of refund claims implies a facility rather than a mandatory requirement. The Revenue insisted that monthly filing was mandatory and raised concerns about potential claims being time-barred.

3. The Tribunal, in line with the precedent set by WNS Global Services case, held that refunds cannot be denied based on the date of exports if all requirements are met. Regarding monthly filing, the Tribunal agreed with the appellant that "may" indicates a choice rather than an obligation. The case was remanded to the original authority to determine the quantum of refund and assess any time-barred claims in accordance with Section 11B, without insisting on monthly filing as a prerequisite.

This judgment clarifies the eligibility for refund of unutilized input service credit for exports made before 14-3-2006 under Rule 5 of the Cenvat Credit Rules, 2002. It also interprets the filing requirements for monthly refund claims by EOUs under Notification No. 5/2006-CE (NT), emphasizing that compliance with the substantive requirements is paramount, and procedural aspects like monthly filing should not be a barrier to legitimate refund claims.