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TMI Blog2016 (3) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... fication is meaningless. See M/s Deepak Spinners Ltd. Versus CCE, Indore [ 2013 (11) TMI 1221 - CESTAT NEW DELHI ] - Decided in favour of assessee - Appeal No. E/429/09 - Order No. A/86731/16/SMB - Dated:- 22-3-2016 - Shri Raju, Member (Technical) For the Petitioner : Shri R.K. Maji, Assistant Commissioner (AR) For the Respondent : Ms. Mansi Patil, Advocate ORDER Per: Raju The respondents, M/s Patodia Syntex Ltd., had availed credit of ADE (TTA) in respect of fabrics. There was no ADE (TTA) to the final product, therefore, they were unable to utilize the same credit. The respondents had exported certain goods and in terms of Rule 5 of the Cenvat Credit Rules, 2004, the respondents filed refund claim. The refund claim was rejected on account of limitation as in respect of the period April, 2003 to June, 2004, the refund claim was filed on 20.10.2007. Aggrieved by the said order, the respondent preferred an appeal before the Commissioner (Appeals), who set aside the order passed by the Assistant Commissioner and allowed the appeal filed by the respondents. Aggrieved by the said order, the Revenue is in appeal before this Tribunal. 2. Learned AR for the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the decision of Hon'ble High Court of Madras in the case of GTN Engg. (supra) and treated the date of export as the relevant date for the purpose of Rule 5 of the Cenvat Credit Rules, 2004. 3. Learned Counsel for the respondent argued that the clause (6) of Notification No. 11/2002 requires filing of the application before the expiry of period specified under Section 11B of the Central Excise Act, 1944. She argued that Section 11B does not cover the case pertaining to refund of CENVAT Credit under Rule 5 and therefore, the time limit as specified therein in meaningless. In support of her argument, she relied on the decision of the Tribunal in the case of Deepak Spinners Ltd. 2014 (302) ELT 132 (T). She particularly relied on para 6 of the said judgment to assert that similar view has been taken by the Hon'ble High Court of Madhya Pradesh also. Paras 6 7 of the said decision read as under: - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 11B of the Central Excise Act would not apply to the claim of refund claimed pursuant to notification issued under Rule 57F. It is, in our opinion, procedural in nature rather than mandatory (see AIR 1992 SC 152). In this case, what was required to be seen by the authorities was whether appellant had submitted along with application all necessary proof regarding exportation of goods and relevant extracts of form R.G. 23A or deemed credit register maintained in respect of textile fabrics in original as the case may be as provided in Clause 6 of Appendix to notification issued under Rule 57F. Once the appellant (Assessee) was able to satisfy these requirements to the satisfaction of authority concern then they were entitled to claim the refund of duty paid on inputs. 7. In my view the judgment of Hon ble Madhya Pradesh? High Court is squarely applicable to this case, more so when the appellant falls within the jurisdiction of Hon ble Madhya Pradesh High Court. This judgment has been followed by Hon ble Gujarat High Court in the case of CCE, Surat-I v. Swagat Synthetics reported in 2008 (232) E.L.T. 413 (Guj.) and also by the Tribunal in the case of Elcomponics Sales P ..... 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(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 manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the ..... 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