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TMI Blog2016 (12) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year from the relevant date. Held that: - reliance placed on the decision of the case of CCE Vs Celebrity Designs India Pvt Ltd. [2015 (3) TMI 660 - MADRAS HIGH COURT] where it was held that the refund claim filed beyond the period of one year from the relevant date is time barred. The question then arises what is the relevant date? - Held that: - Sub clause (ii) of Section 11 B (B) (a) states that if the goods are exported by land, the date on which such goods pass the frontier would be the relevant date. Therefore the date on which the goods entered the SEZ can be taken into consideration for ascertaining the relevant date. The appellant appears to have accordingly computed the period of limitation and contends that some amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issues arising in both these appeals being the same they were heard together and are disposed by this common order. 2. Brief facts - (E/2850/2011) The appellants are manufactures of Mud pumps, Power skids. The appellants cleared the entire production to SEZ, and there were no clearances made to DTA. As such there was accumulated CENVAT Credit of duty paid on the inputs to a tune of ₹ 15,04,515/-. The appellants filed refund claim on 30.06.2010 for the quarter (i.e., April 2009 to March 2009) for an amount of ₹ 6,07,121/- and later after verification of records by their Chartered Accountant filed an amendment to the refund claim with amended amount of ₹ 15,04,515/-. 3. A Show Cause Notice dated 28.09.2010 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows: ARE1 No. date/export invoice Date of Customs endorsement on ARE1/invoice evidencing crossing customs frontier / SEZ Delay in filing of the refund claim as per lower Appellate Authority finding 28/27.03.2009 (January to March 2009) 30.03.2009 Within time 29/28.03.2009 (January to March 2009) 31.03.2009 Within time 01/24.04.2009 (April to June 2009) 24.04.2009 67 days delay 02/28.04.2009 (April to June 2009) 07.05.2009 54 days delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilised for payment of service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arguement, that refund claim of unutilized CENVAT Credit cannot be rejected on the sole ground of limitation. 8. On behalf of department, Ld AR, Sh. Arun Kumar, drew attention to the judgment rendered by the Hon ble High Court of Madras in the case of CCE Vs Celebrity Designs India Pvt Ltd., [2015 (321) ELT 221 (Mad.)], and submitted that the refund having been filed beyond the period of one year from the relevant date is barred by limitation and therefore rightly rejected. 9. I have heard both sides. The counsel for appellant relies upon the decision laid by Hon ble High Court of Madhya Pradesh in STI India Ltd. The said decision was referred by the Hon ble High Court of Madras in the case of CCE Vs Celebrity Designs India (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the goods entered the SEZ can be taken into consideration for ascertaining the relevant date. The appellant appears to have accordingly computed the period of limitation and contends that some amount would fall within time. The dates of the goods crossing the frontier / entering the SEZ as shown in the table requires verification. Therefore, I am of the view that the matter can be remanded to the original authority to verify whether claim with regard to any export would fall within the period of limitation, if the relevant date is reckoned as the date when the goods entered the SEZ. 11. At the time of hearing the Ld. Counsel for appellant put forward a new submission, that the unit is now closed down for the past five years and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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