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TMI Blog2020 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the time prescribed under Section 11B of the Central Excise Act, 1944 would be applicable for claiming refund of CENVAT Credit?" CEA No.35/2018 came to be admitted on 23.07.2019 to consider the substantial questions of law indicated thereunder. (i) Whether, the Tribunal is justified and correct in upholding rejection of the claims for refund of untilized Cenvat credit filed quarterly by the Appellant on 1.10.2013 for the period from July 2012 to September 2012 and on 3.1.2014 for the period from October 2009 - December 2009 to April 2012 - June 2012 on the ground that the Applications were filed beyond one year despite there is no definition of "relevant date" for computation of the period of one year for claiming refund of untilized CENVAT credit in Section 11B of the CEA, 1944, Rule 5 of the CCR, 2004 and Notification No.5/2006 CE (NT) dated 14.03.2006 and 27/2012 CE (NT) dated 18.6.2012? (ii) Whether the Tribunal is justified and right in holding that the "relevant date" for computation of the time limit for submission of claim for refund of unutilized CENVAT credit under Rule 5 of the Cenvat credit Rules, 2004 will be the end of the quarter in which the FIRCs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed appeals before CESTAT and tribunal after considering the rival contentions by order dated 02.12.2016 has allowed the appeal of Revenue by setting aside the order of the appellate authority and restored the order of the original authority by opining that refund claim has to undergo the scrutiny of limitation provided under the Act and as such accepted the plea of the revenue. RE: CEA NO.35/2018: 4. Appellant having registered with the Service Tax Department under the category of services viz., "Information Technology Software Service" and exporting the service, had taken CENVAT credit on input services and submitted applications for refund of unutilized CENVAT credits accumulated on account of export of service for the period October-2009 upto September-2012. The adjucating authority rejected the applications for refund on the ground that it was submitted after expiry of one year relevant under Section 11B of the Act and the 'relevant date' adopted for the purposes of computation of limitation was construed as the date on which service was exported and held no export invoice pertaining to the claim period had been submitted. The appellate authority by order dated 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng refund and as such, Section 11B of the Central Excise Act, which prescribes a time limit of one year cannot be read into the said notification only on account of there being reference to it. He would also contend that appellants are entitled to seek refund without reference to limitation and undisputedly, appellants had unutilized CENVAT Credit and for various reasons same could not be utilized and appellants were entitled or empowered to seek refund at any time without reference to limitation. He would also contend that there is no date or the starting time specified under Rule 5 of Cenvat Rules for the purposes of reckoning limitation to file an application for refund and only by notification No.14/2016 dated 01.03.2016 the limitation period of one year has been prescribed as enumerated thereunder and as such, even accepting the contention of the revenue that limitation of one year would be applicable, then also such limitation would be applicable only from 01.03.2016 i.e., from the date of issuance of notification No.14/2016 and not earlier to it. In support of his submissions he has relied upon the following judgments: 1. 2012 (28) S.T.R. 426 (Mad.): COMMISSIONER OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CENVAT Credit Rules, 2004 which was in force up to 31.03.2012 and the Rules made from 01.04.2012 are extracted herein below: Rule 5 of the Cenvat Credit rules, 2004 from 1.4.2012 "RULE 5. Refund of CENVAT credit. - Where any input or input service is used in the 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 which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the [Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Central Government in exercise of the powers conferred under Rule 5 of CENVAT Credit Rules, 2004. Refund of unutilized cenvat credit under Rule 5 is subject to the above notification and clause (6) of the notification dated 14.03.2006 which has bearing is extracted herein below: "The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994 in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944)." The above referred clause (6) also finds a place in the subsequent notification dated 18.06.2012 which would clearly indicate that the period specified in Section 11B of the Central Excise Act, 1944 would squarely be attracted in respect of the claims made for refund of Cenvat credit. Notification dated 01.03.2016 is a notification issued amending the notification No.27/2012 dated 18.06.2012 whereunder paragraph 3 of clause (b) of notification dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to Section 18 of the Finance Act, 1956, only a limited retrospective operation i.e. up to 1-4-1956, only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorise the Income Tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided, become barred." 10.2. To similar effect is the judgment in ITO v. Induprasad Devshanker Bhatt [AIR 1969 SC 778]. The Court held: (AIR p. 783, para 6) "6. In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297(2)(d)(ii) of the new Act, the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal period of six months. On the facts of the present case, since the claims for rebate were made beyond the original period of six months, the respondents cannot avail of the extended period of one year on the subsequent amendment to Section 11-B. 12. The effect of Section 11-B, and in particular, applications for rebate being made within time, has been laid down in Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] , thus: (SCC pp. 631-32, para 108) "108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff-whether before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991 or thereafter-by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laid down by this decision it is clear that all claims for rebate/refund have to be made only under Section 11-B with one exception-where a statute is struck down as unconstitutional. Further, the limitation period of six months has to be strictly applied." Thus, the irresistible conclusion which has to be necessarily drawn is to the effect that in respect of refund of claims made under Rule 5 of CENVAT Credit Rules, 2004 the provisions of Section 11-B of the Central Excise Act would be squarely applicable. Even in respect of the refund claims made under the CENVAT Credit Rules, 2004 insofar as it relates to "service providers" under the Finance Act, 1994, the provisions of Central Excise Act, 1944 as specified in Section 83 of the Finance Act, 1994 would cover the same inasmuch as, Section 11-B also finds a place in Section 83 of the Finance Act, 1994. 12. Though argument is sought to be put forward by contending that by virtue of notification dated 01.03.2006 specifying the period of limitation, we are not inclined to accept the same, inasmuch as, Rule 5 of CENVAT Credit Rules itself clearly specifying that such refund claims would be subject to "such safeguards, condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in Section 11-B. In other words, time limit has to be computed from the last date of the last month of the quarter which would be the relevant date for the purposes of examining if the claim is filed within the limitation prescribed under Section 11-B or otherwise. The details of the refund claims insofar as it relates to 12 claims was on 03.01.2014 had been filed beyond one year from the last date of the last month of the quarters and as such, they were clearly time barred. Insofar as remaining 4 claims, matter has been remanded to the original authority, against which there is no appeal by the revenue. Hence, we answer the substantial question of law No.2 that tribunal was right in holding that the "relevant date for computation of time limit will be the end of the quarter" in which FIRC's are received as per the extant notification No.27/2012 - CE (NT) dated 18.06.2012. 14. For the reasons aforestated, we proceed to pass the following: JUDGMENT (i) Appeals Nos.31/2017, 32/2017, 33/2017, 25/2018 & 35/2018 are dismissed. (ii) Orders dated 02.12.2016 (in CEA Nos.31/2017, 32/2017 & 33/2017), dated 31.07.2017 (in CEA No.25/2018) and dated 08.03.2018 (in CEA No.35 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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