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TMI Blog2017 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... against appellant. - E/1165/2011-SM - A/11228/2017 - Dated:- 31-5-2017 - Dr. D. M. Misra, Member ( Judicial ) For Appellant: Shri K.I. Vyas, Advocate For Respondent: Shri A. Mishra, A.R. ORDER Per Dr. D.M. Misra Heard both sides. 2. This is an appeal filed against OIA No.CS/47/DMN/VAPI/2011-12, dt.25.08.2011, passed by Commissioner (Appeals), C.Ex. S.Tax, Daman. 3. Briefly stated the facts of the case are that the Appellants had filed cash refund claim for ₹ 24,55,908/- dt.27.02.2008, claiming refund under Rule 5 of CENVAT Credit Rules, 2004. Alleging that the said refund claim is time barred, a Show Cause Notice was issued to them on 21.06.2010, proposing rejection of the same. On adjudication, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence cash refund of the same is admissible to them. He submits that in filing of refund claim, the Appellant had not followed the procedure laid down under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE (NT), dt.14.03.2006. It is his contention that the refund of accumulated credit in cash would be admissible if the same is filed within the time limit prescribed under Section 11B of Central Excise Act, 1944 i.e. one year from the relevant date i.e. export of the goods. In support of his contention, the learned Authorised Representative for the Revenue refers to the decision of Hon'ble Madras High Court in the case of CCE Vs GTN Engineering - 2012-TIOL-369-High Court-MAD-CX [=2012 (281) E.L.T. 185 (Mad.)], CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable. 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 the relevant date. Rule 5 specifies that where any input or input service is used in the manufactures of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed. 15. A reading of the above rule, though there is no specific releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of otherwise due of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be. As has been stated earlier that equity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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