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TMI Blog2023 (10) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... pect has not been examined by the lower authorities. The claim has also been held liable to be rejected for not having justified the inability to utilize the CENVAT credit towards domestic clearance. We do not find any such condition in the said notification or, for that matter, in rule 5 of CENVAT Credit Rules, 2004. The eligibility for availment of the scheme, though elaborating upon the non-utilization of accumulated CENVAT credit, has not designed a mechanism for such segregation save proportionality with exports which is not in dispute. Such entitlement for claim of refund has not been examined and, having been disposed off at the threshold, lacks scrutiny on merits. It is necessary for the application for refund to be restored t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the prescription in notification no. 5/2006-CE (NT) dated 14th March 2006, issued in pursuance of empowerment for notifying safeguards, conditions and limitations, and that it was not open to the sanctioning authority to impose restrictions not specified therein. According to Learned Counsel, the lower authorities had erroneously relied upon the decision of the Hon ble High Court of Madras in Commissioner of Central Excise, Coimbatore v. GTN Engineering (I) Ltd [2012 (281) ELT 185 (Mad.)]. He further placed reliance on the decision of the Tribunal in Commissioner of Central Excise Customs, Surat-I v. Swagat Synthetics [2008(232) ELT 413 (Guj.)]. 4. According to Learned Authorised Representative, it is abundantly clear from the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing any such limitation. Nonetheless, the prescription in notification 5/2006-CE(NT) dated 14th March 2006 refers to section 11B of Central Excise Act, 1944 but, in the absence of such specification in the statute, it is necessary to read down adherence to section 11B of Central Excise Act, 1944 as within the framework of monetization therein. In the said scheme, Central Government has prescribed that claims are to be consolidated for each quarter which, by itself, erases applicability of date of export as the relevant date. The decisions of the Tribunal that have been relied upon by both sides pertain to the period prior to such limitation having been incorporated by notification. Any limitation prescribed by the said notification would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, insofar as it related to the bar of limitation, was approved by the Hon ble High Court. 7. It is settled law that relevant date for the purpose of section 11B of Central Excise Act, 1944 would be the date of export/date on which the application could have been preferred/ date on which the last of the repatriation for the export of that quarter was received. This aspect has not been examined by the lower authorities. 8. The claim has also been held liable to be rejected for not having justified the inability to utilize the CENVAT credit towards domestic clearance. We do not find any such condition in the said notification or, for that matter, in rule 5 of CENVAT Credit Rules, 2004. The eligibility for availment of the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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