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TMI Blog2017 (4) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. Hence these appeals. 3. On behalf of the appellant on 16.03.2017 Ld. Counsel argued the appeal no. 22751/2014. The case then was adjourned to 27.03.2017 to he heard along with the other connected appeals. The Ld. Counsel has filed written submissions. 4. The argument put forward by the Ld. Counsel for appellant is that the condition in para 4 of the Notification No. 5/2006-CE (NT) along with Rule 5 would go to show that relevant date for computing the period of limitation for filing refund claim is not the date of export of goods. That the relevant date has to be reckoned as the date on which the manufacturer gains knowledge that he is not able to utilize the accumulated credit. He submitted that as per para 4 of the notification, the refund is allowed only in situations where the manufacturer is not in a position to utilize the input credit allowed under Rule 3 of CENVAT Credit Rules on the goods exported during the relevant quarter. When the provisions Rule 5 of CENVAT Credit Rules, 2004 is read with the above condition in para 4, the effect is that the manufacturer is eligible to claim refund only when he is not able to make adjustment of the credit by utilization of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly beyond one year from the date of export of the goods covered in the shipping bills. For example; when the export of goods is on 23.01.2012 the appellant ought to have filed the refund claim on or before 22.01.2013. The refund claim is filed on 05.09.2013. He submitted that the judgment rendered by the Hon'ble Madras High Court in the case of M/s GTN Engineering (India) Ltd., (supra) covers the issue under consideration. That therefore, the refund claims have been rightly rejected on the ground of limitation. 7. I have heard the submissions before me. The appellants have cleared their goods to Special Economic Zone (SEZ) and have filed refund claim of the unutilized CENVAT Credit on inputs used in the goods so exported. It is not disputed that the refund claims have been filed beyond one year when computed from the date of shipping bill/date of clearance of goods to SEZ. One of the contention put forward by the appellant is that the limitation prescribed in Section 11B of Central Excise Act, 1944 is not applicable to the refund claim filed under Rule 5 of CCR, 2004 read with Notification No. 5/2006 or 27/2012. Clause 6 of Notification No. 5/2006 gives the condition regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computing the period of one year. If the mind set of each manufacturer as to when he decides that he is not able to utilise the accumulated credit is to form the basis (starting point) for computing the limitation period, it will give rise to uncertainity and utter chaos. Therefore, this argument of appellant is not tenable. 9. The issue whether the limitation prescribed in Section 11B is applicable to refund claims filed under Notification No. 5/2006 was subject to analysis by the Hon'ble High Court of Madras in the case of GTN Engineering (India) Ltd., (supra). The Hon'ble High Court observed as under: "11. We have carefully considered the abovesaid submissions. The relevant portion in Section 11B of the Central Excise Act, 1944, reads as under : "11B. Claim for refund of [duty and interest, if any, paid on such duty. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [in such form and manner] a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Service Tax Rules, 1994, in original are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944) . 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules, 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for such claim, the said provision must be read to find out as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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