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TMI Blog2017 (10) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the date of abolition, that too only when the respondent proves that the unutilised credit was on account of export. Hence, Rule 5 of CENVAT Credit Rules, 2004, is not applicable to the refund claim seeking refund in cash for the unutilised balance credit, that too after it was lapsed on 09.07.2004. The refund claim has to be filed within one year from the date of export as per Section 11 (B) of the Central Excise Act, 1944. Thus, it is evidently clear that the refund claim is not maintainable as time barred and hit by limitation. When the Central Excise Act, 1944 under Section 11(B), as amended, prescribes time limit for making any claim for refund of any duty of excise, the CESTAT ought to have concurred with the well considered view of the Adjudicating Authority. Moreover, CESTAT has not dealt with the aspect of limitation in the context of provisions under Section 11(B) of the Central Excise Act, 1944. Thus, the final order passed by the (CESTAT) that the unutilised credit of Additional Excise Duty is refundable merely on the basis that there is no provision in law to deny refund, deserves to be set aside. Appeal allowed - decided in favor of appellant. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the plea of unutilised credit remained. As the levy of AED (T TA) was abolished w.e.f. 09.07.2004, the unutilised balance credit stands lapsed on that day itself. As per Section 11(B) of Central Excise Act, 1944, refund claim should be made within a period of one year, but in this case, refund claim has been made after a period of nearly three years from the date of abolition of AED (T TA) and therefore, the same is time-barred one. But the learned Customs, Excise and Service Tax Appellate Authority, without assigning any reason, reversed the orders of the authorities below. Therefore, the learned counsel would pray to set aside the order impugned. 6. Before the authorities below, the respondent submitted that the unutilised credit on account of Additional Duty of Excise lying in the records of the appellant has not become possible to be utilised in view of no levy of such duty on textile goods. There is no notification issued by the Government to deprive the appellant from the credit by any means. Therefore, to avail the credit, the appellant has made refund claim under Rule 5 of CENVAT Credit Rules, 2004. The one year time limit under Section 11(B) of Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 deals with claim for refund of duty, which is extracted hereunder:- 11B. CLAIM FOR REFUND OF DUTY. (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [ Assistant Commissioner of Central Excise ] before the expiry of one year [ from the relevant date ] [ in such form and manner ] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act ] [Provided further that the limitation of one year shall not apply where any duty has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette. ] [ Explanation : For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s abolished with effect from 09.07.2004, the unutilised balance credit stands lapsed and the claim of refund cannot be entertained after a period of nearly three years from the date of abolition of Additional Excise Duty (T TA). 11. It could be seen from the records available, the respondent Textiles had cleared the final product for export under a 'letter of undertaking' as well as 'on payment of duty' and claimed rebate of the same and the same was sanctioned and paid to them subsequently on 12.11.2007. 12. The respondent Textiles seems to have filed the refund claim under Rule 5 of CENVAT Credit Rules, 2004. Rule 5 of CENVAT Credit Rules, 2004 reads as under:- 5. Refund of CENVAT credit.- where any input or input service is used in manufacture 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 so used shall be allowed to be utilised by the manufacturer or provider or output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed balance credit lapsed, which ought to have been claimed within three years. The refund claim should have been filed within one year from the date of abolition, that too only when the respondent proves that the unutilised credit was on account of export. Hence, Rule 5 of CENVAT Credit Rules, 2004, is not applicable to the refund claim seeking refund in cash for the unutilised balance credit, that too after it was lapsed on 09.07.2004. The refund claim has to be filed within one year from the date of export as per Section 11 (B) of the Central Excise Act, 1944. Thus, it is evidently clear that the refund claim is not maintainable as time barred and hit by limitation. When the Central Excise Act, 1944 under Section 11(B), as amended, prescribes time limit for making any claim for refund of any duty of excise, the CESTAT ought to have concurred with the well considered view of the Adjudicating Authority. Moreover, CESTAT has not dealt with the aspect of limitation in the context of provisions under Section 11(B) of the Central Excise Act, 1944. Thus, the final order passed by the (CESTAT) that the unutilised credit of Additional Excise Duty is refundable merely on the basis that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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