2016 (11) TMI 478 - AT - Central Excise

100% EOU - Rejection of refund claim - accumulated cenvat credit - Rule 5 of the Cenvat Credit Rules - N/N.5/2006 (CE) NT dated 14.3.2006 - limitation bar - the claim should be filed in respect of Export Oriented Units on monthly basis - Held that - in terms of clause 6 of the notification 5/2006 read with section 11B, refund claims pertaining to the period falling within one year from the date on which the refund claim has been filed are to be held as within time; claim prior to this period , will be hit by time bar and to determine the amount of refund allowable I remand the matter to original adjudicating authority to quantify and allow the refund on the above lines.

Summary

Issues:
Rejection of refund claim for accumulated cenvat credit under Rule 5 of Cenvat Credit Rules based on time bar and filing frequency.

Analysis:
1. Issue of Time Bar:
The appeal challenges the rejection of a refund claim for accumulated cenvat credit filed under Rule 5 of the Cenvat Credit Rules for the period November 2008 to September 2009. The appellant argues that the notification governing the refund claim, No. 5/2006 CE (NT) dated 14.3.2006, does not specify any time limit for filing such claims. The appellant relies on various case laws to support the contention that there is no time limit imposed for such refund claims. On the contrary, the Revenue argues that the notification specifies in clause 6 that the refund application must be filed before the expiry of the period specified in section 11B of the Central Excise Act, 1944. The authorities below determined a one-year time limit under section 11B for filing the claim, which the appellant contests.

2. Frequency of Filing Claims:
Another issue raised is the rejection of the refund claim on the grounds that it was not filed on a monthly basis as required for Export Oriented Units (EOUs) under clause 2(b) of the notification. The appellant argues that the provision stating claims should be submitted once per quarter and monthly for EOUs does not imply that claims not filed monthly should be rejected. The consolidated refund claim filed for the period October 2007 to September 2009 on 8.12.2009 was rejected for not being filed monthly, which the appellant challenges.

3. Interpretation of Relevant Date:
Regarding the determination of the relevant date for filing the refund claim, the notification specifies that the claim should be filed before the expiry of the period specified in section 11B of the Central Excise Act, 1944. The appellant contends that the relevant date for determining the one-year period under Rule 5 should be the date on which the final products are cleared for export. This argument is supported by a decision of the Hon'ble High Court, which the appellant relies on to assert that the relevant date should be the date of export for claiming refund of CENVAT credit.

4. Conclusion:
After considering the arguments and case laws presented by both parties, the Tribunal concludes that refund claims falling within one year from the date of filing the claim are within time, while claims prior to this period are time-barred. The matter is remanded to the original adjudicating authority to quantify and allow the refund accordingly. The appeal is decided in favor of the appellant based on the above analysis.