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TMI Blog2017 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Order No. 20150-20151 / 2017 - Dated:- 30-1-2017 - Shri S. S. Garg, Judicial Member For the Appellant : Mr. S. Sivakumar Adv For the Respondent : Dr. Ezhilmathi, AR ORDER Per S. S. Garg The appellants have filed these two appeals aggrieved against the impugned orders dated 24.9.2013 and 25.9.2013 whereby the Commissioner (A) has allowed the Department appeal and remanded the case back to the original authority for re-quantification of refund amount. The issue in both the appeals is identical, therefore both the appeals are being disposed of by this present common orders. The details of appeals are as under: Appeal No. OIA No. Period Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for four services. The first appellate authority also upheld the decision of the original authority in restricting the export turnover for the period from 29.10.2009 to 31.12.2009 by ignoring the exports for the period from 1.10.2009 to 28.10.2010 as hit by time bar while sanctioning the refund. For the same issue, the Department has filed appeal before the first appellate authority mainly on the ground that the adjudicating authority has neither quantified nor reduced the amount of refund relating to the period which is hit by the limitation of time. Therefore, the first appellate authority vide his order dated 24.9.2013 and 25.9.2013 allowed the appeal filed by the department and directed the original authority to re-compute the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed the time limit for seeking refund of any kind. She further submitted that in cases where refund arises from the export of goods and as per Section 11B, the refund has to be filed before the expiry of one year from the relevant date as may be prescribed. The relevant date as per Explanation to Section 11B means: (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act. 8. In the above said decision, this Court took note of Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 and came to the conclusion that the limitation as prescribed under Section 11B of the Act is applicable in respect of such a claim. 9. In the present case also, similar notification, viz., Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002, was in vogue in respect of the period in question. The relevant portion of the said notification reads as follows : Refund of Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, where the claim for refund is filed after a period of one year and hence, the same is clearly hit by the provisions of Section 11B of the Central Excise Act read with Notification No. 11 of 2002, dated 1-3-2002. Accordingly, the issue involved in this appeal is answered in favour of the Department and against the assessee. 6. After considering the submissions of both the parties and perusal of the materials on record and after considering the judgments of the Hon ble High Court of Madras, I am of the considered view that this case needs to be remanded back to the original authority to re-compute the amount of refund relating to the period which is hit by limitation of time i.e., from 1.10.2009 to 28.10.2009. Both the appeals a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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