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TMI Blog2019 (2) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... [2011 (9) TMI 450 - KARNATAKA HIGH COURT], relied upon by the appellants the High Court was not even seized with issue application of limitation under section 11B to the cases of refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004. Yes, period of limitation as provided under Section 11B will be applicable to refund claims filed in terms of Rule 5 of CENVAT Credit Rules, 2004. - Relevant date for purpose of limitation in respect of refund claims filed under Rule 5, will be the last date of quarter in which the goods were actually exported. The appeal filed by the appellants is allowed and matter remanded back to the adjudicating authority for consideration the refund quarter-wise and determine whether it is hit by limitation or not. - E/294/2009-DB - Final Order No. 20191/2019 - Dated:- 21-2-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. SANJIV SRIVASTAVA, TECHNICAL MEMBER M.S. Nagaraja, Advocate For the Appellant Dr. J. Harish, Joint Commissioner, AR For the Respondent ORDER Per: SANJIV SRIVASTAVA This appeal is directed against the Order-in-Appeal No. 35/2009 dated 14.01.2009 of Commissioner of Central Excise (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defined under Section 11B. 2.3. Aggrieved by the said order, the appellants have filed this appeal before this Tribunal. 2.4. In their appeal, the appellants have challenged the order of Commissioner (A) on various grounds stating that: (a) The Department was denying the eligibility to CENVAT credit of Service Tax paid on input services by invoking Rule 6(1) of CCR, 2004 on the ground that goods exported are exempted from payment of duty. The appellants have challenged the said contention of Department in SCN dated 14.03.2006 with respect to credit of ₹ 1,54,67,673/- from being part of the refund proceedings. They have also challenged the proposed disallowance of credit of ₹ 2,54,92,595/- which includes the amount of CENVAT credit of ₹ 1,54,67,673/-. Since they have challenged the SCNs proposing the eligibility of CENVAT credit, the availing of CENVAT credit and application for refund of unutilized CENVAT credit should be deemed to be under protest and hence cannot be barred by limitation under Section 11B. The Constitutional Bench of Hon ble Supreme Court in the case of Mafatlal Industries Ltd. Vs. UOI, 1999 (89) ELT 247 (SC) has held in Para 83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eless Solutions (P) Ltd. Vs. CST, Bangalore, 2012 (27) STR 134 (Kar.) Hon ble Karnataka High Court has held that the limitation of time under Section 11B would not apply to refunds under Rule 5. In view of the direct decision of jurisdictional High Court on the issue, the Tribunal will rebound by the said judgment even in case where contrary view has been taken by other High Courts. In his support, he relied upon the following decisions: Asst. Commr., Income Tax, Rajkot Vs. Saurshtra Kutch Stock Exchange Ltd., 2010 (18) STR 84 (SC). Commr. of Income Tax, Bangalore Vs. Ecom Gill Coffee Trading Pvt. Ltd., 2014 (305) ELT 328 (Kar.). CCE Vs. Andhra Sugars Ltd., 2015 (319) ELT 297 (AP). RPG Life Sciences Ltd. Vs. UOI, 2005 (187) ELT 433 (Guj.). Centurion Laboratories Pvt. Ltd. Vs. UOI, 2017 (325) ELT 328 (Guj.). Kamakshi Tradexim (India) Pvt. Ltd. Vs. UOI. 2017 (351) ELT 102 (Guj.). Duraline India Pvt. Ltd. Vs. CCE, Goa, 2009 (237) ELt 689 (Tri. Mum.). Principal Commissioner of Service Tax, Pune Vs. Prodair Air Products India Pvt. Ltd., 2017 (47) STR 76 (Tri. Bom.). (b) He also placed reliance on the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (b) He also placed reliance on the decision in the case of CCE, Cus. ST., Bengaluru Vs. Span Infotech (India) Pvt. Ltd., 2018 (12) GSTL 200 (Tri. LB). He further submits that refund under Rule 5 is governed by the provisions of Section 11B and the period of limitation should be filed within a period as specified under the said Section. With regard to this, Para 10 is reproduced below: 10. After considering the provisions of the notifications issued under Rule 5 of CCR, we note that there is a specific condition that the refund claims are required to be filed within the period specified under Section 11B. Consequently, we are of the view that completely ignoring the provisions of Section 11B may not be appropriate. This view is supported by the decision of Hon ble Madras High Court in the case of GTN Engineering (supra) wherein Hon ble High Court has disagreed with the view expressed by Hon ble Karnataka High Court in the case of mPortal (supra) that Section 11B will have no application with respect to refund under Rule 5 of CCR. (c) On filing of the refund under protest, he submitted that the refund claim could not be under protest as the proviso to Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 .. Provided further that the limitation of six months shall not apply where any duty has been paid under protest. .. Explanation: (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 in the manufacture of such goods,- (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; . Hon ble Supreme Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said provision, it is amply clear that the relevant date in respect of such claims of refund under Rule 5 has not been defined by the said Section. Explanation A, to the said Section defines the refund to include the claim for rebate of duty paid on goods exported or in respect of the goods used in manufacture of the exported goods. Explanation B, while defining relevant date denes the relevant date for claiming the rebate of duty on the goods exported out of India or in respect of excisable materials used in manufacture of such goods. The said relevant date does not define the relevant date for the purpose of the refund under Rule 5 of CCR. The same view has been expressed by the Madras High Court in case of GTN Engineering Industries [2012 (281) ELT 185 (MAD)]: 12 By that provisio, a claim for refund is made available in case of refund of duty and interest, if any paid on such duty as far as that provision is concerned, there is no dispute that it is applicable only in case of duty paid and not on the CENVAT credit facilities. As already pointed out to tide over the situation and also to make eligible for the manufacturer of the final products which is 100% export orient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CENVAT credit, Rule 5 should be made applicable. 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 relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of CENVAT credit. Admittedly, the respondent has made a claim only invoking Rule 5 of the CENVAT Credit Rules, 2004. In that view of the matter, there cannot be any diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Span Infotech (supra) also did not take into account that the refund application for entire quarter was to be treated as one. Further, this judgment specifically in respect of competition of relevant date for export of services and not as per for the export of goods where claim of refund is in respect of Service Tax paid on reverse charge basis. Hence, this judgment is also distinguishable. 5.7 In case of mPortal India Wireless Solutions Private Limited, Bangalore [2011-TIOL-928-HC-KAR-ST], relied upon by the appellants the High Court was not even seized with issue application of limitation under section 11B to the cases of refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004. The relevant excerpts of the said decision are reproduced below: 2. The assessee M/s. mPortal (India) Wireless Solutions Pvt. Ltd., Bangalore is an STPI Unit engaged in development and export of Software. It is a 100% export oriented unit. It had claimed refund of accumulated CENVAT credit of ₹ 4,36,985/-. The period of dispute is the financial year 2006-07. The Assistant Commissioner, Service Tax, Division-III, Bangalore, rejected the refund claim filed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is entitled to the refund of the CENVAT credit. Similarly insofar as refund of CENVAT credit is concerned, the limitation under Section 11B does not apply for refund of accumulated CENVAT credit. Therefore, bar of limitation cannot be a ground to refuse CENVAT credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming CENVAT credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the CENVAT credit rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. From para 4 of the order it is quite evident that only issue framed by the Hon ble High Court was with regards to admissibility of CENVAT Credit, to the assessee on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment. In view of the above we are not in agreement with the submissions of the learned counsel to the effect that observations to the effect that the limitation under Section 11B does not apply for refund of accumulated CENVAT credit made by Karnataka High Court decision in case of mPortal are binding precedent. Appellants have in their submissions relied upon a series of case law including the decision of larger bench in case of J K Tyres to submit that in case where there is judgement of jurisdictional High Court on the issue then it is binding. We have no quarrel with the said preposition. None of these decisions say that even obite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of filing the refund claim in case where the refund claim originally filed has been returned back by the jurisdictional officer with a deficiency memo to the claimant and the claimant resubmits the refund claim after sometime removing the deficiencies, we find that Hon ble Delhi High Court has in case of Arya Exports [2005 (192) ELT 89 (DEL)] held as follows: Para 4 and 5 of the said decision 4. Before parting with the file we may also notice here that the order passed by the Appellate Tribunal dated 17th July, 2001 does not suffer from any patent, legal or other infirmity. The assessee had filed an application under Rule 57F(4) for refund of the excise duty wrongfully recovered from him. This application was declined on the ground that it was not made in the prescribed form and necessary documents were not annexed thereto. Thereafter another application was filed by the assessee which again was dismissed being beyond the period of limitation. Both these arguments were rejected by the Appellate Tribunal which held as under :- Subsequently, when they realised the correct position of law as mentioned in Rule 57F(4) they had, through letter dated 31-7-95, reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility. If the claim is filed without requisite documents, it may lead to delay in sanction of the refund. Moreover, the claimant of refund is entitled for interest in case refund is not given within three months of the filing of claim. Consequently, submission of refund claim without supporting documents will not be allowed. Even if claim is filed by post or similar mode, the claim should be rejected or returned with Query Memo (depending upon the nature/importance of document not filed). The claim shall be taken as filed only when all relevant documents are available. In case any document is not available for which the Central Excise or Customs Department is solely accountable, the claim may be received so that the claimant is not hit by limitation period. Hon ble Apex Court has in case of Ratan Melting Wire [2008 (13) SCC 1] (Five Member Bench) held as follows: 6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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