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TMI Blog2023 (12) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... o years from the date of order of the Commissioner (A) is clearly time barred and hence, the claims rejected on time bar by the authorities is justified. Also, the present appeal is under Rule 5 of the Cenvat Credit Rules, 2004 and hence the question of refund under Section 142 does not arise. Moreover, as per Section 142, any claim for refund of CENVAT credit is fully or partially rejected, the amount so rejected shall lapse as seen from clause (3) of Section 142. The appeal is dismissed. - MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) For the Appellant - Mr. Akbar Basha, CA For the Respondent - Mr. Neeraj Kumar, Superintendent (AR) ORDER M/s. Rakon India Pvt. Ltd., appellant, is a 100% EOU who manufacture and export Crystal and Oscillators . They filed a refund claim of unutilized cenvat credit on input and input services. The original authority granted refund partly and rejected the balance amount on the ground that the shipping bills were not filed along with the claim. The appellant filed an appeal against this rejection before the Commissioner (Appeals). Since the shipping bills were produced before the Commissioner (Appeals), vide Order-in-Appeal No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer 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 avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty. Cenvat credit Procedure for Refund Notification No. 5/2006-C.E. (N.T.) superseded [Notification No. 27/2012-C.E. (N.T.), dated 18-6-2012] In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules ), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 5/2006-Central Excise (N.T.), dated the 14th March, 2006, published in Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R 156( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported is situated. (ii) the registered premises of the provider of service from which output services are exported is situated. (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). -- (d) The applicant shall file the refund claim along with the copies of bank realization certificate in respect of the services exported. (e) The refund claim shall be accompanied by a certificate in Annexure A-I, duly signed by the auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services. (f) The Assistant Commissioner or Deputy Commissioner to whom the application for refund is made may call for any document in case he has reason to believe that information provided in the refund claim is incorrect or insufficient and further enquiry needs to be caused before the sanction of refund claim. (g) At the time of sanctioning the refund claim the Assistant Commissioner or Deputy Commissioner shall satisfy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h duty] may make an application for refund of such 2[duty and interest, if any, paid on such duty] to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of 1[duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such 2[duty and interest, if any, paid on such duty] had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of one year shall not apply where any 2[duty and inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 979/-. Further, I find that the appellant has filed the present refund claim under Section 11B and not under Rule 5 of CCR read with Notification No. 27/2012. Further, I also find that after the introduction of GST, the appellant could not transitioned the excess debit into TRAN-I. In that case, the only option for the appellant was to file a refund claim under Section 11B read with Section 142(5). Further, I find that the impugned order has not disputed the eligibility of credit debited in excess. After the introduction of GST in July, 2017, there is no option provided to the noticee to avail Cenvat credit, as the returns have been suspended with regard to erstwhile regime. Consequently, the noticee filed the refund of the amount debited in excess in terms of provision 142(3) of CGST Act which was allowed as credit . Emphasis supplied. The above facts are clearly distinguishable in as much as that was not a case of Rule 5 refund; while the present appeal is under Rule 5 of the Cenvat Credit Rules, 2004 and hence the question of refund under Section 142 does not arise. Moreover, as per Section 142, any claim for refund of CENVAT credit is fully or partially rejected, the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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