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TMI Blog2018 (11) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the lower Adjudicating Authority with consequential relief. 2. The issue involved in the present appeal is regarding the refund application filed by the appellant in terms of Section 11B of Central Excise Act, read with Rule 5 of the CENVAT Credit Rules, 2004. In this case the respondent has filed the refund application on line on 25/04/2015 and submitted the hard copy of the same alongwith relevant documents in the Divisional office on 30.06.2015 for refund of CENVAT credit amounting to Rs. 4,22,51,651/-, accumulated due to clearance for final products, under LUT, for export without payment of duty. Accordingly, as per department limitation date of filing appeal shall to be 30/06/2015, which is the date on which all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise. The Commissioner (Appeal) vide the impugned order set aside the Order-in-Original and allowed the refund to the appellant. It is against the order of Commissioner (Appeals) Revenue is aggrieved and hence the present appeal. 4. The Ld. Advocate on behalf of the respondent submitted that time limit prescribed under Section 11B of the Central Excise Act is not applicable for refund under Rule 5 of the Cenvat Credit Rule. 4.1 The Department has contended that the refund application against ARE 1 Nos.145/2014 dated-29/09/2014 and 150/2014 dated 30/09/2014 are time barred under Section 11B of the Act as the said goods have been exported in the month of October,2014 which did not pertain to second quarter of 2014 for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as is evident from ARE and that the goods were have been cleared in the 2nd quarter of 2014 to September, 2014 and this contention of the Revenue is without any merit. 4.4 It was further stated by the Ld. Advocate that availment of drawback pertaining to Customs duty will not be a bar under Rule 5 of the CENVAT Credit Rules to the extent that Rule 5 of the Cenvat credit Rule which aimed at only to prevent the assessee to take double benefit in respect of the duty paid on the input or input services which are used for the manufacture of export goods. Notification No. 98/2013-CUS (NT) dated-14.09.2013 provides all industry rate of duty draw back, and the heading has two AIRs (1) for CENVAT Credit. One where the assessee has not availed cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods dispatched and as a result the short shipping quantity cannot be considered for the quantification of the refund claim. Not only that the corresponding BRCs has also been submitted to the Department. 4.6 The Ld. Advocate also contested that during the relevant quarter an amount of Rs. 94,54,063/- towards credit of input services is covered by show cause notice No. V (72)26/Jindalsteel/Adj./Ran-I/2015/5556 dated- 24/07/2015 and hence disputed amount cannot be part of the present refund claim. It was further submitted that Principal Commr. vide Orderin- Original No. No.54-59/Central Excise/Pr. Commr./2018 dated- 22.03.2018 has confirmed the amount disputed vide the SCN dated-24.07.2015. However, the appeal against the same is pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs or Excise duty, on which the said facility has not been availed. The Rule 5 of the CENVAT Credit Rules, wherein it is stated that no refund shall be available if the benefit under Customs and Central Excise duties and Service Tax Draw Back Rules, 1995 is availed. It is only to prevent claimant to avail double benefit in respect of the duties on input and input services which are used in the manufacture of export goods. The said Rule does not debar an assessee to claim drawback of Customs duty as per Drawback Rule even if the benefit of Cenvat Credit is availed or vice versa. If the rate indicated is the same, for AIR with Cenvat facility and without Cenvat facility, it shall mean the rate in AIR pertains to Customs portion only. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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