Custom, Excise & Service Tax Tribunal
Inventys Research Co Pvt Ltd vs Commissioner Of Central Excise-Nagpur on 27 March, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Excise Appeal No. 86498 of 2013
(Arising out of Order-in-Appeal No. PVR/01/NGP/2013 dated 07.01.2013
passed by the Commissioner of Central Excise (Appeals), Nagpur)
M/s. Inventys Research Co. Pvt. Ltd. Appellant
K-38, Five Star Industrial Area, MIDC,
Butibori, Nagpur
Vs.
Commissioner of Central Excise, Nagpur Respondent
GST Bhavan, Civil Lines, Telangkhedi Road, Nagpur 440 001.
Appearance:
Shri Yogesh Patki, Advocate, for the Appellant Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Respondent CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Date of Hearing: 27.03.2023 Date of Decision: 27.03.2023 FINAL ORDER NO. A/85566/2023 PER: SANJIV SRIVASTAVA This appeal is directed against Order-in-Appeal No. PVR/01/NGP/2013 dated 07.01.2013 passed by the Commissioner of Central Excise (Appeals), Nagpur. By the impugned order, Commissioner (Appeals) has upheld the order passed by the lower authority holding as follows:-
"ORDER I hereby reject the refund claim of Rs.34,51,586/-, Rs.7,37,880/-, Rs.18,88,778/- & Rs.2,39,512/- under Section 11
2 E/86498/2013 B of Central Excise Act, 1944 read with Rule 5 of Cenvat Credit Rules, 2004 and Notification No. 5/2006 (NT) dated 14.03.2006."
2.1 Appellant had filed four refund claims under Rule 5 of Cenvat Credit Rules, 2004 as detailed in table below:-
Sl. No. Period Amount 1. Oct. 2009 to Dec. 2009 Rs.34,51,586/- 2. Jan. 2010 to March 2010 Rs. 7,37,880/- 3. April 2010 to June 2010 Rs.18,88,778/- 4. July 2010 to Sept. 2010 Rs. 2,39,512/- 2.2 A show cause notice dated 01.07.2011 was issued to the
appellant asking them to show cause as to why the refund claims filed by them should not be rejected. The show cause notice was adjudicated as per the order-in-original referred in para 1 above and the appeal filed by the appellant against the order-in- 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.
3 E/86498/2013 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 of refund in case of deemed export. Therefore, as no specific time limit to file refund of cenvat credit, rejecting refund of cenvat credit on grounds of limitation invalid. Therefore, notice relying on section 11B bad and refund cannot be rejected. Settled law that in the absence of specific provision for demand, the demand is bad. Same analogy applies when there is no provision specifying time limit for filing refund claim, rejection of refund on ground of limitation is bad:
o Laghu Udyog Bharati v. UOI (S.C.) reported in 2006(2) STR 276;
o Indian National Shipowners Association v. UOI (Bom. H.C.) reported in 2009 (13) STR 235 as confirmed by the Hon'ble Supreme Court in 2010 (17) STR J57:
o Swarnadhra ljmi Integrated Township Dev. Pvt. Ltd. v. CCE (Tribunal) reported in 2022 (64) GSTL 556. Reliance on following cases where it has been held that limitation under section 118 will not apply to refund of cenvat credit as relevant date not specified: o STI India Ltd. v. CCE (Madhya Pradesh H.C.) reported in 2009 (236) ELT 248;
o Deepak Spinners Ltd. v. CCE (Tribunal) reported in 2014 (302) ELT 132; and o Good Year India Ltd. v. CCE (Tribunal) reported in 2015 (326) ELT 340 o The Hon'ble Madras High Court in GTN Engineering reported in 2012 (281) ELT 185 has held that limitation under section 11B applies to rule 5 refund.
o However, the Hon'ble Tribunal in the case of Good Year has considered both Hon'ble Madras H.C. and Hon'ble Madhya Pradesh H.C and followed the Hon'ble Madhya Pradesh H.C. 4 E/86498/2013 Relevant date would be the date on which Hikal exported the goods. If refund filed beyond one year from the date of export by Hikal, refund not eligible. But if filed at any time before export by Hikal and/or if filed within one year of export by Hikal, then eligible in both cases. Remand only for this limited purpose. Refund claim for January to March 2010 not barred by limitation as filed within one year of end of quarter:
o Poona Brush Co. v. CCE (Tribunal) reported in 2018 (363) ELT 678;
o John Kells BPO Solutions I. Pvt. Ltd. v. CCE (Tribunal) reported in 2016 (43) STR 473.
3.3 Arguing for the Revenue, learned AR reiterates the findings recorded in the impugned order.
4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments.
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
5 E/86498/2013 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 another, even to a 100% EOU, as long as the EOU is located within India, cannot be considered as export. The concept of 'deemed Export was conceived in the EXIM policy of India for the purpose of granting certain benefits to the exporters in the form of incentives so that export of goods and services from India and consequent generation of foreign exchange could be maximized. But wherever the benefit or the incentive of deemed export has been extended it has always been done by issuing a notification to that effect, so as to make it legally applicable. In the absence of such a notification no consequence or benefit of export will automatically follow from deemed export.
12. There is no provision in Rule 5 of the Cenvat Credit rules, 2004, nor in the Notification 5/2006-CE (NT) dated 14.03.2006, as amended, saying that export includes deemed export for the purpose of the rule or the notification. Therefore such a meaning cannot be imported in the term export.
13. There are a number of decisions of the Hon'ble CESTAT and the High Court as mentioned below which confirm the above view.
14. In the case of S.V. Business Pvt. Ltd. Vs. CCE Thane-1, 2006(198)ELT408(Tri- Mum), the CTAT has observed as under
"6. After hearing the Id. DR, I find that there is no definition of export under the Excise Act. As such, going by the definition of export as given in Customs Act or as understood in the common parlance, clearance to 100% EDU cannot be treated as export. The Tribunal in the case of Blue Star Ltd. v. Commissioner of Central Excise, reported in 2003 (155) ELT 322 (1) has held that the goods sent to 100% EOU are one step away from completion of export and in itself cannot conclude export. The ratio of the above decision is fully applicable to the facts of the present case. By a fiction of law, goods cleared to 100% EOU have been 6 E/86498/2013 equated with exports, Le, they are deemed export but such fiction of law is created only for a specific purpose and cannot be equated with exports in a blanket manner. Inasmuch as Rule 5 uses expression "export" and not "deemed export", the same has to be limited to the actual export".
In the case of Jumbo bags Ltd. Vs. Commissioner of Customs, Chennai 2011(268)ELT81(tri-Chennai), CESTAT has observed as under, "Definitions of "Exports" under Customs Act, 1962 and under the Foreign Trade (Development & Regulation) 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 availing full duty exemption under Notification No. 6/2006-CE. is admissible or not in terms of the provisions of Rule 5 of the Cenvat Credit Rules. Rule 5 of the Cenvat Credit Rules provides that where any input or input services have been used in the manufacture of final product which is cleared for export under 7 E/86498/2013 bond or letter of undertaking, or as the case may be, is used in the manufacture of intermediate product cleared for export, or used for output service which is exported, the Cenvat credit in respect of the Input or input service so used shall be allowed to be utilised by the manufacturer or provider of output service towards payment duty of excise on any final product cleared for home consumption or for export on payment of duty or for payment of service tax on output service and where for any reason, such adjustment is not possible, the manufacturer or the provider of outward service shall be allowed the refund of such amount subject to the safeguards, conditions and limitations as specified by the Government by Notification. This cash refund of accumulated Cenvat credit is subject to condition that the manufacturer/provider of output service does not avail the input duty drawback or input duty rebate. From perusal of this Rule, it is clear that this Rule is applicable only in respect of the use of Cenvat credit availed inputs or input services for manufacture of the goods which are cleared for export under bond/letter of undertaking or are used in the manufacture of intermediate product cleared for export. While the supplies to SEZ are to be treated as export for the purpose of this Rule in terms of the provisions of Section 2(m) of SEZ Act, 2005, the supplies to DMRC by availing Notification No. 6/2006-CE. which though deemed exports in terms of the provisions of EXIM policy, cannot be treated as export for the purpose of Rule 5 of Cenvat Credit Rules, 2004. Therefore, we are of the view that the provisions of this Rule are not applicable in respect of accumulated Cenvat credit on account of supplies to DMAC by availing full duty exemption under Notification No. 6/2006-CE. As regards supplies to 100% COUS, as rightly observed by the Commissioner (Appeals) there is no evidence that the goods have been used by those EOUS in manufacture of finished product which were exported out of India under bond."
In the case of BAPL Industries Ltd. Vs UOI 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
8 E/86498/2013 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. 7,37,880/- on 15.03.2011. This shows that above two claims have been filed by the claimant after one year from the clearance of goods from the factory. Para 6 of the appendix to the Notification No. 5/2006 (NT) states that the refund application is to be filed before expiry of the period specified under Section 113 of Central Excise Act, 1944 and the period specified under Section 11 B states that refund application should be filed within one year from the "relevant date". The relevant date has been defined under Section 11 B, is as under:
(B) "relevant date" means,-
(a) in tire case of goods exported out of India where a refund of excise duty paid is available a respect of the goods themselves or, as the case may be the excisable materials used in the manufacture of such goods,-
9 E/86498/2013
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, laves India, or
(ii) If the goods are exported by land, the date on which such goods passé the frontier, or
(iii) If the goods re exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India;
Thus from the above provision of "relevant date" the claim should be filed within one year from the date of exportation of goods whereas in the instant case claims mentioned at Sr. No. 1 & 2 above have been filed after expiry of one year from the date of clearance of goods from the factory.
Therefore above two claims of Rs. 34,51,586/- and Rs. 7,37,880/- are also rejected on the ground of time bar issue under the provisions of Section 11 B of Central Excise Ac, 1944."
5.1 For our consideration, following two questions arise:-
(i) Whether Rule 5 of Cenvat Credit Rules, 2004 is applicable in the case where the intermediate goods are cleared to another EOU for the purpose of use in manufacture of goods which are finally exported - whether Rule 5 of Cenvat Credit Rules is applicable to the case of deemed exports.
(ii) Whether the first two refund claims in the table are hit by limitation as provided by Section 11B of the Central Excise Act, 1944.
5.2 We find that the issue whether Rule 5 of Cenvat Credit Rules, 2004 is applicable in the case where the intermediate goods are cleared to another EOU for the purpose of use in manufacture of goods which are finally exported - whether 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:-
10 E/86498/2013 Shilpa Copper Wire Refund under 5 of Credit Rules Industries [2011 (269) ELT eligible in case of deemed export 17 (Guj.)] - clearance by one 100% EOU to another 100% EOU Shilpa Copper Wire The Hon'ble Supreme Court Industries [2018 (361) ELT dismissed the Departments A84 (SC)] appeal against the decision of the Hon'ble Gujarat High Court NBM Industries [2009 (246) Refund under rule 5 of Credit ELT 252 (T)] Rules eligible in case of deemed export. Goods treated as intermediate goods.
NBM Industries [2012 (276) Departments appeal against ELT 9 (Guj.)] Hon'ble Tribunals order dismissed by Hon'ble Gujarat High Court.
Relies on its own decision in Shilpa Copper Wire Industries Nash Industries [2017 Refund under rule 5 of Credit (351) ELT 259 (Kar.)] Rules eligible in case of deemed export. Follows Hon'ble Gujarat H.C. in Shilpa Copper Wire Industries Amitex Silk Mills P. Ltd. 100% EOU -Computation of DTA [2007 (216) ELT 589 (T)] clearances - Deemed exports to be treated at par with physical exports and to be considered.
Relies on Amitex Silk Mills reported in 196 ELT 34 which has been upheld by Hon'ble S.C Amitex Silk Mills P. Ltd. Hon'ble Supreme Court dismissed [2010 (254) ELT A98 (SC)] the Departments appeal against the Hon'ble Tribunal decision 5.3 In the case of S.V. Business Pvt. Ltd. [2006 (198) ELT 408 (T)], Tribunal has held as follows:-
"6. After hearing the ld. DR, I find that there is no definition of export under the Excise Act. As such, going by the definition of export as given in Customs Act or as understood in the common parlance, clearance to 100% EOU cannot be treated as export. The Tribunal in the case of Blue Star Ltd. v. Commissioner of Central Excise, reported in 2003 (155) E.L.T. 322 (T) has held that the goods sent to 100% EOU are one step away from completion of export and in itself cannot conclude export. The 11 E/86498/2013 ratio of the above decision is fully applicable to the facts of the present case. By a fiction of law, goods cleared to 100% EOU have been equated with exports, i.e., they are deemed export but such fiction of law is created only for a specific purpose and cannot be equated with exports in a blanket manner. Inasmuch as Rule 5 uses expression "export" and not "deemed export", the same has to be limited to the actual export.
7. However, the appellants have contended that the said Rule provides for refund of duty in respect of inputs, which are used in the final products, which are cleared for exports under bond. As such, it is their contention that if the goods are ultimately cleared for export, the said rule has to be applied. I find force in the above contention of the appellants. There is nothing in the said Rule 5 of Cenvat Credit Rules, 2001 to suggest that the goods must be directly cleared from the factory for export and even if the inputs are used in the manufacture of intermediate products and final products which are ultimately cleared for export, refund of Modvat credit would be admissible. Inasmuch as, in the present case the fact that the goods were ultimately exported is not available on records, I remand the matter 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 12 E/86498/2013 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 are required to do so, the benefit of Notification 217/86 will not be available to parts which were utilised in the manufacture of these machines. To the extent that these aspects were not raised before the Bench and therefore not considered by it, it would not have binding value."
5.5 In view of the decisions as above, we are of the view that question No. (i) framed above needs to be answered in favour of the appellant and refund claims filed cold not have been rejected on this count.
5.6 On the issue as per question No. (ii), learned counsel has relied upon series of judgments as follows:-
STI India Ltd. [2009 (236) Section 11B not applicable as ELT 248 (MP)] does not fall within four corners of 11B Deepak Spinners Ltd. [2014 Follows M.P. High Court and holds (302) ELT 132 (T)] relevant date under section 11B not applicable Good Year India Ltd. [2015 After noting dissenting decision of (326) ELT 340 (T)] Madras H.C. follows M.P.High Court and holds relevant date under section 11B not applicable GTN Engineering [2012 Even though section 11B does not (281) ELT 185 (Mad.)] cover refund of cenvat credit, limitation has to be satisfied.
Departs from M.P. High Court 5.7 Rule 5 of Cenvat Credit Rules, 2004 reads as follows:-
"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 CENVA credit in respect of the input or input service so used 13 E/86498/2013 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."
5.8 In terms of the above Rules, Central Government 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 such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the 14 E/86498/2013 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 [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 [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 [duty and interest, if any, paid on such duty] has been paid under protest."
5.10 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 Span Infotech (India) Pvt. Ltd. [2018 (12) GSTL 200 (Tri.-LB)] 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 paras are reproduced below:-
"9. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of unutilized Cenvat credit, even after adjustment of the same for payment of duty of excise or service tax. The conditions, safeguards and limitations for consideration of such refund claims have been spelt out by the Government through notifications. Notification No. 5/2006 (up to 17-6-2012) and Notification No. 27/2012 (w.e.f. 18-6-2012) (as amended) has specified the conditions in this regard. These notifications specify that such refund claims are to be filed within the period specified in Section 11B. The relevant date specified under the above section leaves no room for doubt as far as export of goods is 15 E/86498/2013 concerned. However as far as export 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 will have no application with respect to refund under Rule 5 of CCR."
5.11 As the issue is squarely covered by the decision of the Tribunal, we are of the view that the relevant date needs to be considered from the end of the quarter.
5.12 Accordingly we find 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 one year as prescribed under Section 11B and would be hit by limitation. Other refund claims have been filed within the period of limitation.
6.1 In view of the discussion as above, we are of the view that refund claims for the quarters January 2010 to March 2010, April 2010 to June 2010 and July 2010 to September 2010 are admissible to the appellant whereas the refund claim for the quarter October 2009 to December 2009 is hit by limitation.
16 E/86498/2013 6.2 In view of the above, the impugned order needs to be set aside in respect of the three quarters for which we have held that refund claims would be admissible.
6.3 Appeal is partly allowed in favour of the appellant for the quarters January 2010 to March 2010, April 2010 to June 2010 and July 2010 to September 2010.
(Order pronounced in the open court) (Sanjiv Srivastava) Member (Technical) (Dr. Suvendu Kumar Pati) Member (Judicial) tvu