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TMI Blog2011 (8) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... br>MR.JUSTICE D.MURUGESAN, MR.JUSTICE K.K.SASIDHARAN, JJ. FOR PETITIONER : Mallika Srinivasan FOR RESPONDENT : M.N.Bharathi ORDER D.MURUGESAN, J. These six appeals are directed against the common order of the Customs, Excise & Service Tax Appellate Tribunal, Chennai dated 13.08.2010. By that order, the Tribunal held that in terms of Rule 5 of the CENVAT Credit Rules, 2004, r/w Notification No.5/2006-CE(NT) dated 14.3.2006, the question of limitation to claim refund of CENVAT credit cannot be pressed into service. While setting aside the order of the Commissioner of Central Excise (Appeals), the Tribunal remanded the matters for fresh consideration after giving opportunity to the assessee/respondent to place relevant materials. 2. As to the question whether the claim for refund of the CENVAT credit facilities should be made before the expiry of the period of one year from the relevant date is of much importance, as we are informed that there is no decision of this Court on the issue, we are inclined to consider the relevant provisions in detail. 3. While admitting the appeal, the following substantial questions of law were framed: "1. Whether on the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of Cenvat credit of duty paid on inputs and capital goods, which were used in the manufacture of valves exported. For a better appreciation of the factual details relating to the claim, we may refer the following: A.No. Order Sl.No. & Date Period for which refund claimed relates. Amount of refund claimed under rule 5 of CCR 2004. Date of receipt of the claim 49/2009/CE 78/2009 dt.31.03.2009 April-06 to June 06 Rs.2,18,866/- 25/01/2008 50/2009/CE 79/2009 dt.31.03.2009 Julyl-06 to Sept 06 Rs.2,82,366/- 25/01/2008 51/2009/CE 80/2009 dt.31.03.2009 Oct-06 to Dec 06 Rs.7,00,633/- 25/01/2008 52/2009/CE 84/2009 dt.31.03.2009 Jan-07 to March 07 Rs.5,60,842/- 04/01/2008 53/2009/CE 85/2009 dt.31.03.2009 Apr-07 to June 07 Rs.5,08,510/- 27/12/2007 54/2009/CE 86/2009 dt.31.03.2009 July-07 to Sept. 07 Rs.2,85,411/- 27/12/2007 5. By six individual orders in original dated 31.3.2009, the original authority accepted the claim of the revenue in respect of the claim Nos.84/2009, 85/2009 and 86/2009 on the ground that the credit inputs received after the export clearance are not eligible for refund and accordingly rejected the same. Insofar as the other three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities, the rejection of the claim for refund is well justified and the Tribunal ought not to have remanded the matter for that reason. 9. On the other hand, the learned counsel for the respondent would submit that though the provisions of Section 11B is not strictly made applicable to the refund of CENVAT credit, as it applies only for the claim of duties and interests if any, paid on such duty, in the wake of the provisions of sub-rule 5 and the notification as such, claims could be made. Nevertheless, in the absence of any notification in regard to the relevant date as defined in Section 11B(5)(B) of the Act, the rejection of the claim for refund on the ground of period of limitation is bad. 10. The learned counsel would draw our attention to the above provision defining the relevant date and contended that none of the clauses contained therein would apply for the claim for refund on CENVAT credit. In the absence of the same, the finding of the CESTAT requires no interference. As far as the other findings for remittal viz., the respondent had to produce materials, is concerned, he would submit that the respondent requested the authorities to peruse the materials, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd where for any reason such adjustment is not possible, the manufacturer or provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification." 13. In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly, Notification No.5/2006-CE(N.T.) dated 14.03.2006 has issued. Clause 6 appendix to the notification reads as under: "6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944)" 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette." The said rule does not prescribe any time limit. In the absence of such prescription as to the limitation, the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation. 17. The learned counsel would also rely upon a Judgment of Madhya Pradesh High Court at Indore reported in 2009 (236) E.L.T.248 (M.P.) [STI India Ltd., v. Commissioner of Customs and Central Excise, Indore]. In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944, cannot be made applicable insofar as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based ..... X X X X Extracts X X X X X X X X Extracts X X X X
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