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TMI Blog2018 (5) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... he period specified under Section 11B - completely ignoring the provisions of Section 11B may not be appropriate. Section 11B is applicable for the purpose of computation of one year period for filing the refund claim and for export of service, the "relevant date" for the purpose of deciding the time limit for consideration of refund claim under Rule 5 of CCR will be the end of the quarter in which the FIRCs received. Refund is barred by limitation under Section 11B of the Act - appeal dismissed - decided against appellant. - ST/20227/2017-SM, ST/20296/2017-SM - ST/20306/2017-SM - Final Order No. 20374-20385/2018 - Dated:- 8-3-2018 - Shri S.S Garg, Judicial Member Shri M.S. Nagaraja, Advocate T. Rajeshwara Sastry Associates- For the Appellant Shri N. Jagadish, Superintendent (AR)- For the Respondent Order Per : S.S Garg These twelve appeals have been filed by the appellant against the common impugned order dated 26.10.2016 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the refund claim on account of limitation as laid down in Section 11B of the Central Excise Act and as made applicable to the provisions of F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 03.01.2014 6 OIO No. 129/2015 (R) dt. 31.12.2015 14,90,397 Jan 2011 to Mar 2011 03.01.2014 7 OIO No. 130/2015 (R) dt. 31.12.2015 31 57,030 Apr 2011 to Jun 2011 03.01.2014 8 OIO No. 131/2015 (R) dt. 31.12.2015 32,78,015 Jul 2011 to sept 2011 03.01.2014 9 OIO No. 132/2015 (R) dt. 31.12.2015 38,49,589 Oct 2011 to Dec 2011 03.01.2014 10 OIO No. 133/2015 (R) dt. 31.12.2015 28,26,999 Jan 2012 to Mar 2012 03.01.2014 11 OIO No. 04/2016 (R) dt. 05.01.2016 41,17,200 Apr 2012 to Jun 2012 03.01.2014 12 OIO No. 05/2016 (R) dt. 05.01.2016 48,47,855 Jul 2012 to sept 2012 01.10.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Notifications 5/2006 CE (NT) dated 14.03.2006 and 27/2012 CE (NT) dated 18.06.2012 issued under Rule 5 of the Cenvat Credit Rules, 2004 have also not prescribed and/or defined relevant date for computation of one year for submission of the claim for refund of credit. (e) Notification No. 14/2016 CE (NT) dated 1.3.2016 has amended Notification No. 27/2012 CE (NT) as under: (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed as under: (i) in case of manufacturer, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944); (ii) in case of service provider, before the expiry of one year from the date of - (a) receipt of payment in convertible foreign exchange, where provision of service had been completed prior to receipt of such payment; or (b) issue of invoice, where payment for the service had been received in advance prior to the date of issue of the invoice. [Notification No. 14/2016-C.E (N.T), dated 1.3.2016] (f) Perusal of the amending Notification No. 14/2016 CE (NT) as reproduced above shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns: (a) mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore - 2012 (27) S.T.R. 134 (Kar.) (b) CCE, Jalandhar Vs. JCT Ltd. - 2013 (296) ELT 426 (T-Del.) (c) Deepak Spinners Ltd. Vs. CCE, Indore - 2014 (302) E.L.T. 132 (T-Del.) (d) Quality BPO Service Pvt. Ltd. Vs. CST, Ahmedabad - 2015 (39) STR 230 (T-Ahm.) (e) Elcomponics Sales Pvt. Ltd. Vs. CCE, Noida - 2012 (279) ELT 280 (T-Del.) (f) CCE, Bangalore Vs. Centum Rakon India Pvt. Ltd. Final Order No. 22283-84/2017 dated 27.09.2017 4.2. He further submitted that Rule 5 of Cenvat Credit Rules 2004 lays down the substantive eligibility condition for refund of unutilized cenvat credit on account of export of goods or services without payment of duty or service tax. Notification 27/2012 issued in exercise of the powers conferred by Rule 5 lays down the procedure and condition. When the provisions of Section 11B has not prescribed the relevant date in respect of refund of unutilized cenvat credit, Rule 5 of Cenvat Credit Rules has not prescribed the time limit for submission of refund claim and Notification issued under Rule 5 of the Cenvat Credit Rules have not prescribed the relevant date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Section 11B cannot be applied. It was argued that by incorporating the provisions for application of Section 11B of the Act for the purpose of limitation in the notification, the executive has exceeded the power given to them for issue of Notification. It was argued that Section 11B of the Act cannot be quoted in the notification for the purpose of limitation in the notification, the executive has exceeded the power given to them for issue of notification. It was argued that Section 11B of the Act cannot be quoted in the notification for the purpose of limitation at all. Therefore, provision relating to limitation cannot be applied The answer is that if a provision or a clause in the notification is in excess of powers granted for issue of notification or amending a rule or for any other purpose, the remedy is under Article 226 of the Constitution or Article 32 of the Constitution and therefore, the Tribunal can only see whether notification or rule or act and whether those provisions have been followed or not and cannot go into correctness or virus of a provision of a rule or notification. Therefore, we have to apply the notification and only if there is ambiguity, we may have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justment is not possible, the manufacturer or the output service provider will be allowed refund. Further, we find that Section 83 of the Finance Act, 1994 makes provisions of Section 11B applicable for the purpose of service tax matters also. When Section 11B is applicable to service tax matters, we have to replace words 'excisable goods' used under Section 118 as 'services'. Therefore, for the purpose of refund, in view of the specific provisions of Section 83 and notification under Rule 5, it is necessary to substitute service in place of goods. We are not able to agree with the submission that this cannot be done. Therefore, provisions of Section 11B for the purpose of limitation would be applicable. Moreover, it is settled law that while interpreting notification or statute, it is necessary to interpret in such a manner that the relevant clause or the provision does not become OTIOSE. If the submission made be counsel on behalf of the appellants that Section 11B would not be applicable at all, we would be rendering the clause relating to Section 11B in the notification totally irrelevant for the purpose of refund. In view of this reason, this submission ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx xxx Provided that the amount of duty of exercise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to: (a) rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of the goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the Commissioner of Central Excise; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the Rules made, or any Notification issued, under this Act; (d) duty of excise paid by the manufacturer if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not. passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by Notification in the Official Gazette, specify Provided further that no Notification under Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum or dealing with a subject, which is foreign to the main enactment. Proviso can be taken aid of as useful guide to construction of the main enactment. Proviso can be taken aid of as useful guide to construction of the main enactment. If the enacting portion of a Section is not clear a proviso appended to it may give an indication as to its true meaning. As stated by Lord Herschell, 'Of course, a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it'. Mudholkar, J. in Hindustan Ideal Insurance Co. Ltd, v. Life Insurance Corporation Limited reported in AIR 1963 SC 1087 stated the rule thus 'there is no doubt that where the main provision is clear, its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be a surplusage, can properly be looked into to ascertain the meaning and scope of the main provision'. Since the natural presumption is that but for the proviso, the enact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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