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TMI Blog2024 (7) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... turer of Computer Systems and other peripheral products. They have a manufacturing unit in Puducherry and the goods manufactured by the appellant are cleared within India as well as for exports. 3. For exports made during the period from April 2008 to June 2009, the appellant filed a refund claim for Rs 52,83,275/- on 13.08.2009 in terms of Rule 5 of the Cenvat Credit Rules 2004, read with Notification No.5/2006-CE(NT) dated 14.03.2006. The refund claim was made in respect of clearances made to units located in Special Economic Zone and also for exports to Bangladesh. 4. A show cause notice dated 04.11.2009 was issued to the appellant proposing to deny the refund alleging that the clearances made to SEZ units will not qualify as physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner held that the refund claim is time barred and therefore the appellant is not eligible for refund. The demand of Rs.52,83,275/- was thus confirmed on the ground of erroneous refund. Aggrieved by such order, the appellant has filed Appeal No. E/40035/2016. 9. Another show cause notice dated 23.09.2014 was issued to the appellant proposing to demand interest to the tune of Rs.34,12,706/- on the amount of Rs. 52,83,275/- alleging that the appellant is liable to pay interest on the erroneous refund. After due process of law, the Commissioner vide Order-in-Original dated 09.12.2015 confirmed the demand of interest from the date of sanctioning the refund to the date of repayment by appellant. Aggrieved by such order, the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 596 CESTAT Kolkata were adverted to by the Ld. Counsel to argue that an appellate authority cannot travel beyond the scope of the show cause notice in an appeal proceeding. It is thus prayed that the Order-in-Appeal rejecting the refund claim as being time barred cannot be sustained. 12. Without prejudice to the above arguments, it is submitted by the Ld. Counsel that the appellant has already repaid the amount received as refund and availed recredit in their Cenvat account. The appeal E/40488/2015 is seeking relief of refund. The appeal E/40035/2016 is against the recovery of the refund amount. As the appellant has availed recredit and paid back the refund received, appeals E/40488/2015 and E/40035/2016 have become infructuous. The Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing time barred may be set aside. The Ld. Counsel prayed that the appeals may be disposed accordingly. 14. The Ld. AR. Shri. Anoop Singh, appeared and argued for the department. It is submitted that the refund claim has been rejected on the ground of being time barred. The decision of the Hon'ble Jurisdictional High Court in the case of CCE Vs. GTN Engineering 2011 (8) TMI 960 Madras High Court was relied by the Ld. AR to argue that the time limit of one year prescribed under Section 11B is applicable to refund claim filed under Rule 5 of Cenvat Credit Rules 2004. In the present case, the refund claim dated 13.08.2009 for the period 01.04.2008 to 30.06.2008 having been filed beyond the period of one year, the rejection of refund claim by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest. A separate show cause notice dated 23.09.2014 was issued by the department invoking the extended period to demand the interest. The department had already issued a show cause notice in 2010 for recovery of the erroneous refund. All the facts were within the knowledge of the department. Further, the reason for rejection of refund is time bar. The credit availed by the appellant is eligible. Rule 5, provides for an assessee to get refund of the unutilized cenvat credit in case of exports. This is a beneficial provision to facilitate exports. By filing the claim belatedly, the appellant has lost the benefit of refund. The department has not adduced any evidence to establish that there is suppression of facts on the part of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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