2016 (7) TMI 498 - AT - Central Excise

Claim of refund of unutilized cenvat credit - clearances made to International competitive bidding (ICB) - Adjudicating authority has rejected the said refund claim on the ground that the assessee respondent has filed a single claim for the period January 2014 to December 2014, while notification number 27/2012 stipulates for filing of quarterly refund claims under Rule 5 of Cenvat Credit Rules; also rejected the refund claim on the ground that shipping bill which is a document indicated as per rule for evidencing export, duly certified was also not produced. Held that - the show cause notice did not require the respondent assessee to show cause for rejection of the claim on the ground that clearances made to International competitive bidding cannot be considered as exports. In the absence of such allegation, revenue cannot take this as a ground for setting aside the impugned order. Notification number 27/2012 contemplates for filing of refund claims of unutilised Cenvat credit quarterly, but it does not bar an assessee from filing refund claim for the entire period which may be more than a quarter. In the absence of any explicit bar, refund claims, if otherwise eligible, cannot be rejected on the ground that they are not filed quarterly. Refund allowed - Decided in favor of assessee.

Summary

Issues involved:
1. Eligibility for refund of unutilised Cenvat credit due to clearances under International competitive bidding.
2. Compliance with notification number 27/2012 for filing refund claims.
3. Consideration of clearances under International competitive bidding as exports.

Issue 1: Eligibility for refund of unutilised Cenvat credit:
The appeal concerns the eligibility of the respondent for a refund of Cenvat credit due to clearances under International competitive bidding without duty liability. The revenue rejected the refund claim based on the respondent filing a single claim for a year instead of quarterly, and the absence of a certified shipping bill as evidence of export. The first appellate authority disagreed, setting aside the rejection. The revenue argued that supplies under competitive bidding are not physical exports but deemed exports, citing Supreme Court precedents. The Tribunal noted the absence of a requirement in the notification to submit export proof with refund claims.

Issue 2: Compliance with notification for filing refund claims:
The revenue contended that the respondent failed to comply with notification 27/2012, which mandates quarterly refund claims. However, the Tribunal found no explicit bar on filing claims for longer periods if eligible. The Tribunal referenced a High Court judgment stating that the grounds for appeal cannot exceed those in the show cause notice, which did not include the competitive bidding issue.

Issue 3: Consideration of clearances under competitive bidding as exports:
The Tribunal determined that the clearances under International competitive bidding by the respondent could be considered exports, as per the first appellate authority's decision, supported by a High Court ruling. The Tribunal rejected the revenue's appeal, upholding the impugned order.

In conclusion, the Tribunal found no merit in the revenue's appeal, rejecting it and upholding the impugned order, emphasizing the absence of grounds beyond those in the show cause notice and the eligibility of the respondent for the refund.