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TMI Blog2015 (10) TMI 2353X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B of the Central Excise Act, 1994 - The term 'relevant date' has neither been defined in Rule 5 of the Rules nor in the notification issued there under. Further, the said term defined in Section 11B of the Act is not compatible with the situation envisaged in the aforesaid rule. Therefore, there was ambiguity in interpreting the importance/significance of the term 'relevant date' in context with the said rule. The Hon'ble High Court of Madras in the case of GTN Engineering (2011 (8) TMI 960 - MADRAS HIGH COURT), upon analysis of the provisions of Rule 5 of the Rules, Notification dated 14.03.2006 and Section 11B of the Act, have held that the date on which the export of the goods was made and for such goods, refund of Cenvat credit is claimed, should be construed as the relevant date for the purpose of Rule 5 of the Cenvat Credit Rules. Finding recorded in the impugned order that physical export is not to be equated with deemed export and thus, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of Rules, in my considered opinion, is not legal and proper, in view of the judgment of Hon'ble Gujarat High Court in the case of Shilpa Copper (2010 (2) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a 100% EOU engaged in the manufacture of pharmaceutical products. During the dispute period, the appellant supplied certain quantities of these goods to another 100% EOU, namely M/s Apotex Research Pvt. Ltd. (located within India), under the procedure prescribed in the Foreign Trade Policy (FTP). As per the FTP, inter unit transfer of goods between two EOUs are treated as 'deemed export'. The appellant being a 100% EOU was not in a position to utilize the Cenvat credit of service tax paid on the input services and accordingly, filed the applications before the jurisdictional Service Tax authorities, claiming refund of the unutilized credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 (for short, referred to as the Rules ). The refund application filed by the appellant on 12.08.2008, involving the period from 01.07.2007 to 11.08.2007 was rejected by both the authorities below on the ground that the claim has been lodged beyond the period of one year, and as such, the same is barred by limitation of time as per Section 11B of the Central Excise Act, 1944 (for short, referred to as the Act ). With regard to the other refund claims filed for the period October to Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of Cenvat Credit, but Notification No. 5/2006-C.E.(N.T) dated 14.03.2006 issued under Rule 5 of the Rules, which adopts the limitation period under Section 11B of the Act, provides that the relevant date for filing the refund claim shall be confirmed to one year form the date on which the goods are cleared for 'deemed export'. the ld. D.R. relied on the judgement of Hon'ble Madras High Court, delivered in the case of Commissioner of Central Excise, Coimbatore-Vs.- GTN Engineering (I) Ltd. , reported in 2012(281)ELT 185(Mad.) to justify his above stand. The ld. D.R. further submitted that physical export is not to be equated with deemed export, and therefore, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of the Rules. In this context, the judgment of Hon'ble Madras High Court, in the case of BAPL Industries Ltd.-Vs.-Union of India, reported in 2007 (211) ELT 23 (Mad.) has been relied on by the ld. D.R. 6. I have the ld. Counsel for both sides and perused the records. The issues involved in this appeal for consideration by this Tribunal are, as to whether, the time limit prescribed in Section 11B of the Act would be applicable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The relevant paragraph in the said judgement is extracted below:- 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, refund of Cenvat credit is claimed 10. On a conjoint reading of Appendix 2 and 7 in the notification dated 14.03.2006, it reveals that there is no contradiction among the said provisions. In the former provisions, the restriction contained is to the effect that refund cannot be claimed more than once for any quarter in a calendar year by a manufacturer other than the EOU; that for EOUs, the option has been provided for submission of refund claim for each calendar month. Whereas, the later provisions are entirely differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer 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 prescribed as to the limitation, the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation. 13. The finding recorded in the impugned order that physical export is not to be equated with deemed export and thus, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of Rules, in my considered opinion, is not legal and proper, in view of the judgment of Hon'ble Gujarat High Court in the case of Shilpa Copper (supra). In response to the question framed in paragraph 1(a), as to whether, the clearances made by one 100% EOU to another 100% EOU which are deemed export are to be treated as physical export for the purpose of entitling refund of unutilized Cenvat credit, the Hon'ble Court vide paragraph 16 have answered as follows:- 16. In the above fact situation, we are of the view that no question of law much less any substantial question ..... 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