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TMI Blog2014 (7) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax paid on input services used in or in relation to manufacture of their final products. The period of dispute in this case is from July'05 to March'06. In terms of Rule 5 of the Cenvat Credit Rules, 2004, a manufacturer who has availed Cenvat Credit in respect of certain inputs or input services and used the same in or in relation to manufacture of final products which have been exported out of India without payment of duty under bond or Letter of Undertaking, is not required to reverse the credit and he can use the same for payment of duty on the final products cleared for home consumption and if the manufacturer is not in a position to utilize the Cenvat Credit in respect of inputs/input services used in or in relation to manufacture for final products exported out of India under bond without payment of duty, for payment of duty on the goods cleared for home consumption, he would be entitled to cash refund of the accumulated Cenvat Credit subject to conditions as may be specified by the Central Government. One condition mentioned in the Rule itself is that cash refund of accumulated Cenvat Credit would be subject to condition that the manufacture has not exported the final p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 3 months from the date of filing of the claims. The Commissioner (Appeals) disposed off all these appeals by a common order dt. 24.02.09 by which she dismissed the two appeals as not maintainable as the same are time barred, inasmuch as there was delay of 29 days and 10 days beyond the prescribed limitation period of 60 days on filing of appeal. The third appeal was dismissed on the ground that when the Appellant themselves have given up their claim on interest for the period for delay, they cannot raise this issue at the appellate stage. Against this order of the Commissioner (Appeals) these three appeals have been filed. 2. Heard both the sides. 3. Sh. Aditya Kumar, Advocate, the learned counsel for the appellant, pleaded that just because the appellant had given up their claim for interest for the period of delay in course of proceeding before the Assistant Commissioner, they would not be prevented from raising this issue before the Appellate Authority, that the Appellant may have been compelled by the Sanctioning Authority to furnish such letters, that the Apex Court in the case of Dunlop India Ltd. & Madras Rubber Factory Ltd. Vs. Union of India and Others reported in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect. 3. Sh. Pramod Kumar, the learned Joint CDR, defended the impugned order by reiterating the findings of Commissioner (Appeals) and emphasized that once the appellant had given up their claim for interest on refund for the period of delay by submitting letters to this effect to the sanctioning authority, they could not raise this issue before the Appellate Authority for claiming interest for period of delay. He also pleaded that the two appeals which were filed before the Commissioner (Appeals) after delay of 29 days and 10 days from the last date have been correctly rejected as non-maintainable as they have not given any valid reason for the delay in filing of appeals before the Commissioner (Appeals). 4. We have considered the submissions from both the sides and perused the records. The impugned order passed by the Commissioner (Appeals) is in respect of three appeals filed by the appellant out of which two appeals were rejected as non-maintainable on the ground of time bar for delay of 29 days and 10 days in filing of appeals. As per the provisions of Section 35A of the Central Excise Act, 1944, the Commissioner (Appeals) on being satisfied that the appellant was prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich manufacture is unable to utilize for payment of duty on clearance for home consumption. Clause (c) of Proviso to section 11B(2) refers to the 'refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued under the Central Excise Act, 1944', as the refund claim not hit by the principle of unjust enrichment. Thus section 11B covers the refund of Cenvat Credit mentioned in Clause (c) of the Provision to section 11B(c). Therefore, the refund claims filed under Rule 5 of the Cenvat Credit Rules, 2004 have also to be treated as refund claim under section 11B and the Proviso of Section 11B(2) would be applicable to the same. The Apex Court in the case of Union of India Vs. U.P. Tariya Fibre Glass Ltd. (Supra) interpreting the provisions of Section 11B has held as under: A close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of refund, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under sub-section (2) of Section 11B to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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