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TMI Blog2013 (11) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Rule 5 of the Cenvat Credit Rules, 2002, simply provides that the application for cash refund of accumulated Cenvat credit is required to be filed to the Assistant Commissioner/Jurisdictional Deputy Commissioner before the expiry of the period in the Section 11B of the Central Excise Act. It does not mention any relevant date – Order set aside – Decided in favour of Assessee. - Appeal No. 2446 of 2005 (SM) - Final Order No. 57718/2013 - Dated:- 16-9-2013 - Shri Rakesh Kumar, J. For the Appellant : Shri Bipin Garg, Advocate For the Respondent : Shri Davinder Singh, Authorized Representative (Jt. CDR) JUDGEMENT Per. Rakesh Kumar :- The appellant are manufacturers of yarn. The period of dispute in this case is fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has been filed. 2. Heard both the sides. 3. Shri Bipin Garg, Advocate, the learned Counsel for the appellant, pleaded that the issue involved in this case -whether the limitation period prescribed under Section 11B is applicable for the refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2002, stands decided in the appellant s favour by the judgment of Hon ble Madhya Pradesh High Court in the case of STI India Ltd. vs. CCE, Indore reported in 2009 (236) E.L.T. 248 (M.P.) wherein in para 6 of the judgment, while interpreting similar provision in the Notification issued under Rule 57F of the Central Excise Rules, 1944, Honble High Court held that the strict law of limitation provided in Section 11B of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the claim for cash refund under Rule 5 of the Cenvat Credit Rules must be filed within the period of limitation prescribed under Section 11B, this limitation period has to be strictly observed and the relevant date for counting the limitation period for Rule 5 cash refund would be the date of export. He, therefore, pleaded that there is no infirmity in the impugned order. 5. I have carefully considered the submissions from both the sides and perused the records. 6. Rule 5 of the Cenvat Credit Rules, 2002 provides for cash refund of the Cenvat credit accumulated due to clearances for export of goods under bond without payment of duty under Rule 19 of the Central Excise Rules, and which could not be utilised for payment of duty b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f export during the period prior to 17/6/02 is time barred. Thus, the basic point of dispute in this case is as to whether the limitation period prescribed under Section 11B would be applicable for cash refund under Rule 5 of the Cenvat Credit Rules, 2002. I find that on this very issue Honble Madhya Pradesh High Court in the case of STI India Ltd. vs. CCE, Indore (supra) in para 6 of the judgment has held that the strict law of limitation provided in Section 11B of the Central Excise Act would not apply to the claim of refund claimed pursuant to notification issued under Rule 57F. In this regard para 6 of this judgment is reproduced below :- 6. It is not in dispute that claim for the quarter October, 1998 to December 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sara Services Engineer Pvt. Ltd. vs. CCE, Meerut -I (supra) and CCE vs. Fort William Co. Ltd. (supra), wherein it has been held that the provisions of limitation must be strictly construed and the equity considerations are immaterial and irrelevant in applying the same. However, in this case, ongoing through the notification, I find that the para 6 of the Notification No. 11/2002-CE (NT) dated 1/3/02 issued under Rule 5 of the Cenvat Credit Rules, 2002, simply provides that the application for cash refund of accumulated Cenvat credit is required to be filed to the Assistant Commissioner/Jurisdictional Deputy Commissioner before the expiry of the period in the Section 11B of the Central Excise Act. It does not mention any relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of duty under bond or LUT, which cannot be used by a manufacturer for payment of duty on clearances for home consumption and thus this refund claim depends not only upon the accumulation of Cenvat credit due to clearances without payment of duty for export under bond or LUT, but also on the inability to manufacturer to use the accumulated credit for payment of duty on domestic clearances. Unlike export rebate under Rule 18 of the Central Excise Rules, 2002, where an exporter becomes eligible for rebate immediately after export, for cash refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2002/2004, a manufacturer does not become eligible immediately after export but he has to make an attempt to utilise the Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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