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TMI Blog2018 (1) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. 2. This court while admitting the appeal on 28.03.2017 framed the following question of law:- Whether the learned CESTAT has erred in allowing the refund claim of CENVAT Credit in respect of unutilized CENVAT Credit of inputs in respect of the Goods sold by a Domestic Tariff Area (DTA) Unit to a 100% Export Oriented Unit (EOU) contrary to the provisions of Rule 5 of Cenvat Credit Rules, 2004? 3. The issue is now covered by the decision of this court in D. B. Central/Excise Appeal No. 51/2015 (The Commissioner of Central Excise Service Tax V/s M/s Gulshan Chemicals Ltd, A 595, Industrial Area,) decided on 01.11.2017, where while deciding the issue, this court held as under:- 1. This appeal is preferred against the order of Tribunal whereby Tribunal has decided two appeals together wherein appeal No. E/2549/2009-Ex (SM), [Arising out of order in appeal No. 10/2009 (ST) dated 03.06.2009 by the Commissioner of Customs, Central Excise Service Tax (Appeals), Jaipur-I] and Appeal No.ST/214/2009-EX(SM) [Arising out of Order-In-Appeal No.206 (DK)ST/JPR-I/2008 dated 16.10.2008 by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Jaipur-I] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act, 1994 and held that in this case invoice should also be corroborated from books of accounts as well as annual balance sheet, which contained complete and true picture of the transaction. 2.3 The Hon ble Tribunal while deciding the appeal of the respondent- appellant, set aside the impugned orders and allowed the appeals of the assessee with consequent relief vide CESTAT Final Order. The Hon ble Tribunal held that rejection of refund claim on the ground of unjust enrichment is not sustainable in view of the ruling given in the case of Union of India V/s Inani Builders 2011 (22) STR 230 (RAJ) and Commissioner Central Excise V/s Shive Builders 2011 (22) STR 513 (P H). The Hon ble CESTAT held that order passed by the Commissioner is not sustainable on the merits as the adjudicating authority had considered the facts that amount of Service Tax paid by the Appellant shown receivable from the Excise Department if the same would have been considered there was no question reviewing by the Commissioner. 3. Counsel for appellant relied upon the decision in Shravan Banarasilal Jejani vs. Commissioner of C. Ex. Nagpur, 2014 (35) STR 587 (Tri.-Mumbai), wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Pvt. Ltd. vs. Commissioner of Cus. C. Ex. GOA, 2014 (34) STR 562 (Bom.), wherein it has been observed as under:- 10. A perusal thereof would indicate that 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 Authorities specified 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 certain documents referred to in Section 12A 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. Thus, the application for refund has to be made before expiry of one year from the relevant date. In the facts and circumstances before us, the case is covered by Explanation (B)(f) meaning thereby, the application for refund should have been made in the present case within one year from the date of payment of duty. 13. The Revenue, therefore, approached the Tribunal and the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Assessee that the provision may have been invoked, but the claim for refund should be considered by not applying the Rule of Limitation prescribed therein. As has been held by the Hon'ble Supreme court in numerous cases and decisions that the Rule of Limitation is provided in order to uphold a larger public interest. The statutes and Rules of limitation are statutes and prescriptions of repose and peace. They give finality to certain proceedings and orders. The reopening thereof is not permissible beyond a particular limit. In these circumstances we do not see how the Tribunal erred in applying the Rule of Limitation and reversing the order passed by the Commissioner (Appeals). The order of the Assistant Commissioner and that of the Tribunal in the given facts and circumstances cannot be said to be perverse. Both have rejected the claim as in their opinion it was stale and time barred. We do not see how such view can raise a substantial question of law. The view taken is imminently possible. We are, therefore, of the view that the Appeal fails and it is, accordingly, dismissed. 19. Before us, the undisputed position is that the amount was paid by the Appellant as Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, ld. AR relied on the decision of Mafatlal Inds.- 1997 (89) E.L.T. 247 (S.C.) wherein it was held that all the refund are governed by Section 11B of the Central Excise Act, 1944. 4. Heard both sides. Considered the submissions. 5. In this case, the appellant has paid service tax during the impugned period for which they are not required to pay service tax at all as clarified by C.B.E. C. As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (supra) the provisions of Section 11B of the Central Excise Act are not applicable. Therefore, the refund claim filed by the appellant is not time-barred. The case law relied upon by the ld. AR in Mafatlal Inds. (supra) is not relevant to the facts of this case. In these circumstances, I hold that the appellant are entitled for refund claim as filed in time and the provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of this case. Accordingly, impugned order is set aside. Appeal is allowed with consequential relief. The Adjudicating Authority is directed to implement the order within 30 days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Directorate of Legal Affairs. Sir/ Madam, Sub:- Reduction of Government litigation providing monetary limits for filing appeals by the Department before CESTAT - regarding In exercise of the powers conferred by Section 35R of the Central Excise Act,1944 made applicable to Service Tax vide Section83 of the Finance Act,1994 and Section 131BA of the Customs Act,1962 and in partial modification of earlier instruction issued from F.No. 390/Misc./163/2010- JC dated 17.12.2015, Central Board of Excise Customs fixes the monetary limit below which appeal shall not be filed in the High Court as ₹ 20,00,000/-. 2. Except for the above all other terms and conditions of earlier instructions dated 17.8.2011 17.12.2015 stands. (Anuj Agarwal) Officer in Special Duty-Judicial Cell In view of the above, the appeal is disposed of. 6. The appeal stands disposed of. 4. The issue is also now covered by the decision of this court in D. B. Central /Excise Appeal No. 5/2012 D. B. Cental/Excise Appeal No. 5/2012 ( Commissioner of Central Excise Jaipur-1 Versus M/S National Engineering Ltd) decided on 01.02.2017, where while deciding the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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