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TMI Blog2023 (5) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of Modvat credit would be admissible - thus, the refund claims filed cold not have been rejected on this count. Time Limitation - HELD THAT:- As per para 6 of N/N. 5/2006-CE(NT) dated 14.03.2006 specifically provides that refund claim has to be filed before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). As per Section 11B, time limit of one year has been prescribed for filing the refund claim which is evident from reading of Section 11B(1). The issue as to what should be the date from which the period of one year is to be computed has been decided by the Larger Bench of the Tribunal in the case of CCE CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [ 2018 (2) TMI 946 - CESTAT BANGALORE ] wherein the Tribunal has held that the period has to be counted from the end of the quarter to which the refund claim pertains. The relevant date needs to be considered from the end of the quarter - It is found that out of four refund claims under consideration, only the first refund claim for the amount of Rs.34,51,586/- for the period October 2009 to December 2009 has been filed beyond the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-original has been rejected by the Commissioner (Appeals) as per the impugned order. Hence this appeal. 3.1 We have heard Shri Yogesh Patki, Advocate for the appellant and Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- Settled law that clearance to 100% EOU is export for the purpose of Rule 5 of the Cenvat Credit Rules. Amendment made to rule 5 w.e.f March 1, 2015 to specify that export of goods means to take goods to a place outside India. Therefore, prior to March 1, 2015, export of goods did not mean taking to a place outside India. Period covered in the appeal is October 2009 to September 2010 prior to March 2015. Various judicial pronouncements cited in support and cases against distinguished. Clearance is of intermediate goods and hence covered by Rule 5. Tribunal decision in the case of NBM Industries and S.V. Business directly in favour of the Appellant. As regards limitation issue, even though section 11B of the Central Excise Act, 1944 referred to in Notification 5/2006, the said section does not provide relevant date for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. 4.2 Commissioner (Appeals) has in the impugned order observed as follows:- 8. As far as Central Excise is concerned, the procedure of export has been prescribed under the notifications issued under Rules 18 and 19 of the Central Excise Rules, 2002. From the notifications issued under the said rules it can be seen, that whenever 'export of goods' has been mentioned, it is always mentioned with reference to export of goods out of India, i.e. either to Nepal or Bhutan or to any country other than Nepal or Bhutan. 9. Further the refund claim has to be filed under rule 5 within the time limit specified in Section 11 B of the Central Excise Act, 1944. In the said Section the relevant date in relation to export has been specified only in case of goods exported out of India. There is no mention of any relevant date in case of goods cleared within India as deemed export. 10. Further Export has been defined under Section 2(18) of the customs Act, 1962 as, Export with its grammatical variations and cognate expressions means taking out of India to a place outside India . 11. Thus it is very clear that clearances made within India from one place to anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation) Act, 1992 are similar and both mean taking goods out of India-Hence expression 50% of free on board value of exports appearing in Exim policy and Notification No. 2/95-CE. to be taken as referring to physical exports out of India No need to interpret the expression exports and to include clearances made within the country in its ambit whether such clearances are against foreign exchange or rupee payment-Fact that deemed exports are counted towards fulfillment of export obligation as a concession under a separate provision namely Para 9.10 cannot automatically entitle the appellants to a duty concession under Para 9.9 and Notification No. 2/95CE, when the lawmakers have not specifically provided for inclusion of such domestic clearances for purpose of calculating DTA entitlement. In the case of Tricolite Electrical Industries Ltd. Vs CCE, 2012(282)ELT 468(tri- Delhi), the Principal Bench of CESTAT has observed as under, 6. The point of dispute in this case is as to whether cash refund of accumulated Cenvat credit in respect of inputs/input services used in manufacture of finished goods, which were either supplied to other 100% EOUS or supplied to DMRC by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OI 2007(211)ELT 23(Madras) Hon'ble Madras High Court has held as under- A physical export is not a deemed export-Concession granted to petitioner under Chapter 10 of EXIM Policy is deemed export and not an export, hence, cannot be extended for the local sale to DTA or the local sale made by 100% EOU to another 100% EOU CB.E. C. Circular F. No. 305/48/2000-FTT/GO/Ministry of Finance, dated 7-4-2000 clearly says that in order to comply the DTA sale, the event or the transaction should be a physical export and not a deemed export-No impropriety in the circular found. The aforesaid observations of the Hon'ble CESTAT and the Madras High Court are squarely applicable to the facts and circumstances of the present appeal. 4.3 As the Commissioner (Appeals) has not given any finding in respect of limitation, whereas the original authority has recorded as follows:- From the records available with the claims revealed that Noticee filed claim no (1) above for the period 10/2009 to 12/2009 for Rs. 34,51,586/- on 15.03.2011 with the office of the Assistant Commissioner, Central Excise Division II, Nagpur and claim no. (2) for the period 01/2010 to 03/2010 for Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rule 5 of Cenvat Credit Rules is applicable to the case of deemed exports, is no more res integra and has been adjudicated in number of cases as listed below:- Shilpa Copper Wire Industries [2011 (269) ELT 17 (Guj.)] Refund under 5 of Credit Rules eligible in case of deemed export clearance by one 100% EOU to another 100% EOU Shilpa Copper Wire Industries [2018 (361) ELT A84 (SC)] The Hon ble Supreme Court dismissed the Departments appeal against the decision of the Hon ble Gujarat High Court NBM Industries [2009 (246) ELT 252 (T)] Refund under rule 5 of Credit Rules eligible in case of deemed export. Goods treated as intermediate goods. NBM Industries [2012 (276) ELT 9 (Guj.)] Departments appeal against Hon ble Tribunals order dismissed by Hon ble Gujarat High Court. Relies on its own decision in Shilpa Copper Wire Industries Nash Industries [2017 (351) ELT 259 (Kar.)] Refund under rule 5 of Credit Rules eligible in case of deemed export. Follows Hon ble Gujarat H.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to the original adjudicating authority for verification of the said fact and decide the issue accordingly. Appeal is thus allowed by way of remand. 5.4 In the case of Blue Star Ltd. [2003 (155) ELT 322 (T)], following has been held:- 3. Counsel for the appellant next relies upon the decision of the Tribunal in Indian Aluminium Co. Ltd. v. CCE - 1995 (79) E.L.T. 111. In this decision, the Tribunal had applied the judgment of the Delhi High Court in Hindustan Aluminium Corp. Ltd. v. Superintendent - 1981 (8) E.L.T. 642 saying that the goods exported out of India in terms of Rules 12 and 13 are not exempted goods. We are in this case not concerned with the goods exported out of India. We are concerned with the goods sent to a 100% export processing zone, in terms of exemption notifications. We do not think it would be appropriate to apply 100% on the same footing as goods exported. Sending to a 100% export processing zone is only one step towards the process completion of export and cannot by itself conclude that export. We have noted that duty was not paid on the goods sent to the 100% export processing unit. By strictly construing the notification in question, as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment has issued Notification No. 5/2006-CE(NT) dated 14.03.2006 prescribing the conditions and limitation for operation of Rule 5. Para 6 of the said notification is reproduced below:- 6. 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). 5.9 From the above, it is quite evident that para 6 specifically provides that refund claim has to be filed before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). As per Section 11B, time limit of one year has been prescribed for filing the refund claim which is evident from reading of Section 11B(1) reproduced below:- SECTION [11B. Claim for refund of [duty and interest, if any, paid on such duty] . (1) Any person claiming refund of any [duty of excise and interest, if any, paid on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport of services is concerned, the various sub-sections specifying relevant date under Section 11B do not cover the case of export of services. Further, the exporters of services have been given the option to file claims for such refunds once in a quarter and in respect of 100% EOUs, once in a month. The issue referred to Larger Bench is whether the time limit prescribed under Section 11B in respect of filing of refund claims is to be applied from the date of receipt of payment for export of services or can be considered from the end of the quarter in which such payments have been received. 10. After considering the provisions of the notifications issued under Rule 5 of the 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 wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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