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TMI Blog2015 (7) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... 04, to that AED (GSI) Credit only which had accrued w.e.f . 1/4/2000, they out of the total pre-1/4/2000 credit of Rs . 8,71,12,812/-utilized earlier, paid back an amount of Rs . 8,49,74,300/-and thus, the amount of Rs . 21,38,512/-still remains utilized for payment of Basic Excise Duty and Special Excise Duty. While the notification no. 85/97 CE(NT) provides that the claim for cash refund under Rule 57F (13) is to be filed within the limitation period prescribed under section 11B and section 11B prescribes the limitation period which is to be counted from the 'relevant date' as defined in that section, neither this notification nor section 11B gives the definition of the 'relevant date' for the purpose of cash refund under Rule 57F (13). While cash refund under Rule 57F (13) becomes admissible only after export of the goods having been made under bond and when the assessee cannot utilize the CENVAT Credit attributable to the inputs used in the manufacture of the goods cleared for export under bond, for payment of duty on the clearances for home consumption, the Rule does not prescribe as to how only the manufacture exporter is to want utilization of the accumulate credit for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D (GSI) credit in respect of the inputs which had been used in the manufacture for tyres exported under bond and these claims had been filed under Rule 57F (13) of the Central Excise Rules, 1944 read with notification no. 85/87-CE(NT) dated 1/3/197. The Assistant Commissioner by two separate orders dated 6/9/2000 and 6/12/2000 rejected the refund claims totalling ₹ 18 ,90,389 /-. The rejection of the claims was on the ground that there is no AED (GSI) leviable on the final product and also some portion of the refund claim is time barred. On appeal being filed to Commissioner (appeals) against these orders of the Assistant Commissioner, the Commissioner (appeal's) vide order-in-appeal dated 31/12/2002 upheld the Assistant Commissioner's orders. The appellants filed the appeal to the Tribunal against the Commissioner (appeal's) orders dated 31/12/2002. However, while the appellants' appeals were pending before the Tribunal, the Government amended CENVAT Credit Rules, 2002 in March, 2003 and by this amendment, the utilization of AED (GSI) credit for payment of Basic Excise Duty or Special Excise Duty on the final product was allowed. The appellant at that time ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the final product cleared for home consumption. This order of the Assistant Commissioner was upheld by the Commissioner (appeals) vide order-in-appeal dated 30/03/2010 against which this appeal has been filed. 3. Heard both sides. 4. Sh. B.L . Narsimhan , Advocate, ld. Counsel for the appellant, pleaded that though during the period of dispute, there was no AED (GSI) on the final product -tyres , while the tyre cord fabrics used in the manufacture of tyres had suffered in addition to Basic Excise Duty, AED (GSI) also, in terms of the Board's circular no. 267/11/ 2003CX8 dated 12/3/2003, the appellants were eligible for AED (GSI) credit and when any tyre cord fabrics had been used in the manufacture of tyres which had been exported under bond without payment of duty, AED (GSI) credit attributable to such tyre cord fabrics would be refundable under Rule 5 of the CENVAT Credit, 2002, regardless of the fact that AED (GSI) is not leviable on the final product; that in view of this circular of the Board, the appellant would be entitled for the cash refund of the AED (GSI) credit attributable to the inputs used in the manufacture of tyres which had been exported under bond w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (GSI) Credit for payment of Duty of Basic Excise and Special Excise Duty, there is no question of its cash refund under Rule 57F (13). He also pleaded that the refund claim is time barred and in this regard he cited judgment of Hon'ble Madras High Court in the case of CCE -Coimbatore Vs. GTN Engineering (I) Limited reported in 2012 (281) ELT 185 (MAD.) wherein the Hon'ble High Court held that though Rule 5 of the CENVAT Credit Rules, 2004 does not prescribe any relevant date, it has to be the date on which the final product are cleared for export and if any other conclusion is arrived it will result in disentitling any person to claim of refund of CENVAT Credit. 6. We have considered the submission from both the sides and perused the records. The refund claims under Rule 57F (13) of Central Excise Rules, 1944 read with notification no. 85/87 pertain to the period prior to 1/4/2000 and these refund claims are of the accumulated AED (GSI) credit in respect of the inputs which had been used in the manufacture of tyres exported under bond without payment of duty. There is no dispute that though during that period, there was no AED (GSI) on the tyres , the appellant in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limitation period which is to be counted from the 'relevant date' as defined in that section, neither this notification nor section 11B gives the definition of the 'relevant date' for the purpose of cash refund under Rule 57F (13). While cash refund under Rule 57F (13) becomes admissible only after export of the goods having been made under bond and when the assessee cannot utilize the CENVAT Credit attributable to the inputs used in the manufacture of the goods cleared for export under bond, for payment of duty on the clearances for home consumption, the Rule does not prescribe as to how only the manufacture exporter is to want utilization of the accumulate credit for payment of duty on the clearances for home consumption. Therefore, it may not be correct to treat the date of clearance of the goods for export as the 'relevant date'. In view of this, following the judgement of Hon'ble Madhya Pradesh High Court in the case of STI India Limited Vs. CCE -Indore reported in 2009 (236) ELT 248 (MP) (supra) we hold that the refund claims have to be treated as not hit by limitation. In view of the above discussion, the impugned order is set aside and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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