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TMI Blog2013 (11) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed refund of tax paid under Notification No.41/2007, dated 06.10.2007. In the first-round of litigation, the Tribunal observed that the appellants claim should be examined under Rule 5 of Cenvat Credit Rules, 2004. The Tribunal further observed that the decision of the Tribunal in the case of GTN Engineering (I) Ltd. Vs Commissioner of Central Excise, Coimbatore reported in 2010 (259) E.L.T.625 (Tri-Chen.) should be kept in view. This decision was in the matter of time limit for claiming refund of credit under Rule 5 of Cenvat Credit Rules, 2004. 3. A few facts relevant for considering the claim are as detailed below: Sl. No. Particulars Period 01 Period of export Feb.'07 to Sept.'07 02 Period of payments of Commission Oct.'07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. Aggrieved by the order of Commissioner (Appeals), the appellant has filed this appeal. 8. Arguing for the appellant, the learned Counsel for the appellant submits that the remand by the Tribunal in the first-round was only to consider the relevant law and decisions and there is no restriction that the matter has to be decided as per the decision of the Tribunal in GTN Engineering (I) Ltd (supra). In fact this decision is overruled by the Madras High Court and the lower authorities have not followed the decision of the Tribunal. He submits that he wants to argue the matter firstly with reference to the relevant provisions in the Acts. He submits that the decision of Madras high court is only to the effect that provisions of section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of excise duty on excisable materials used in the manufacture of export goods. The provisions do not deal with input services. If at all this provisions is read to substitute 'service tax' in place of 'excise duty' and 'input services' instead of 'excisable materials', it is not proper to ignore the expression 'used in the manufacture' of export goods. Changing this clause to apply to Cenvat credit for input services, for marketing of exported goods abroad, is not a reasonable change because it will lead to an interpretation by which refund may have to be claimed even before tax is paid because service tax becomes payable in some situations after one year of export goods. In such a situation the interpretation leads to absurd results. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decision has been reversed by the Madras High Court observing as under:- 15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of CENVAT credit. Admittedly, the respondent has made a claim only invoking Rule 5 of the CENVAT Credit Rules, 2004. In that view of the matter, there cannot be any difficulty for us to hold that the relevant date should be the date on which the export of the goods was made and for such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de applicable for purposes of another Act cannot go to such extent to defeat the very objective of a beneficial scheme like grant of refund due on exports. After coming to the conclusion that clause (a) to Explanation B will not apply, I have sequentially gone through the other clauses and I find that the most appropriate clause that will apply in this particular case, is clause (f), that is date of payment of service tax. In this case the applicant filed his claim within one-year from the date of payment of service tax and, therefore, I am of the view that the claim is filed within the time-limit and the appellant is eligible for refund. Therefore, the appeal is allowed with consequential relief.
(Dictated and pronounced in open court) X X X X Extracts X X X X X X X X Extracts X X X X
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