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2017 (6) TMI 888 - AT - Central Excise100% EOU - refund of accumulated unutilised CENVAT credit - calibration charges - catering services, freight inward - freight outward - denial on account of nexus and time bar - Held that - Section 11B and Explanation B(a)(i) provides a period of one year is taken from the date on which the ship or the aircraft of such goods are loaded, leaves India - in the present case, the original authority has rejected the partial claim since the same has been filed beyond one year from the date of export of the impugned goods - refund rightly rejected. Refund claim - catering services - Held that - reliance placed in the case of M/s BNY MELLON INTERNATIONAL OPERATIONS (INDIA) PVT LTD. Versus COMMISSIONER OF CENTRAL EXCISE (APPEALS) PUNE-III 2013 (3) TMI 203 - CESTAT MUMBAI , where it was held that CENVAT Credit of service tax paid on the outdoor canteen services is available to the appellant if the employees have not borne the service tax amount and the appellant has not charged the employees for providing the service. Since the appellants are entitled for CENVAT credit of service tax on these services, they will also be eligible for refund of the same under Rule 5 if the services pertain to the period of refund in question - refund allowed. Refund claim - freight outwards - Held that - since the appellant is in export, therefore the place of removal is the port - the appellants are entitled to refund on freight outwards. Refund claim denied on calibration charges and freight inwards on account of nexus - further, the refund claim of ₹ 1,82,355/- is time barred. Appeal allowed - decided partly in favor of appellant.
Issues:
Refund eligibility under Rule 5 of CENVAT Credit Rules (CCR) for various input services, time bar under Section 11B of the Central Excise Act. Refund Eligibility under Rule 5 of CENVAT Credit Rules (CCR): The appeal was against the Commissioner (A)'s order partially allowing the refund claim. The appellant, a 100% EOU holding a public bonded warehouse license, sought refund of unutilized CENVAT credit for input services used in manufacturing and export. The adjudicating authority partially sanctioned the refund claim, rejecting a portion on grounds of inadmissibility and time bar under Section 11B. The Commissioner (A) further allowed refund for certain services like clearing and forwarding inward charges and transportation employees' services, while denying it for calibration charges, catering services, freight inward, and freight outward. The appellant contended that the denial of refund on certain input services and the time bar were contrary to the law and binding judicial precedents. The Commissioner (A) rejected the refund claim for services lacking a direct nexus with manufacturing activities. Time Bar under Section 11B of the Central Excise Act: The appellant argued that the denial of refund and the time bar were not legally sustainable, emphasizing that no time limit is prescribed for refund under Rule 5 if it concerns accumulated credit. The Commissioner (A) rejected a portion of the refund claim as time-barred under Section 11B, citing a period of one year from the date of export of goods. The original authority had rejected the partial claim for being filed beyond one year from the export date. The Tribunal upheld the rejection of refund for a specific amount as time-barred, emphasizing the application of Section 11B and Explanation B(a)(i). Detailed Analysis: The Tribunal found the rejection of a specific refund amount as time-barred valid, as it exceeded the one-year period from the date of export of goods, in compliance with Section 11B. Regarding calibration charges, the refund was denied due to the lack of documentary evidence. However, refund on catering charges was allowed based on statutory requirements and precedents cited by the appellant. Similarly, refund on freight outwards was permitted considering the port as the place of removal for exports, supported by relevant case laws. The Tribunal partially allowed the appeal, permitting refunds for catering services and freight outwards, while denying it for calibration charges and freight inwards, and upholding the time bar for a specific amount. This judgment clarifies the eligibility criteria for refund under Rule 5 of CENVAT Credit Rules and highlights the importance of maintaining a direct nexus between input services and manufacturing activities. It also emphasizes the significance of complying with statutory requirements and providing necessary documentary evidence to support refund claims. The decision reinforces the application of Section 11B for determining the time limit for filing refund claims, particularly concerning accumulated credit.
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