Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Celebity Designs India Pvt.Ltd on 5 March, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No.E/358/2007
[Arising out of Order-in-Appeal No.13/2007 (M-IV) dt. 26.2.2007 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature :
Honble Shri Pradip Kumar Das, Judicial Member
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether the Member wishes to see the fair copy of the order ?
4. Whether Order is to be circulated to the Departmental authorities ?
Commissioner of Central Excise,
Chennai-IV Appellant
Versus
Celebity Designs India Pvt.Ltd. Respondent
Appearance:
Shri Parmod Kumar, JC (AR), for the Appellant Shri M.Karthikeyan, Advocate, for the Respondent CORAM :
Honble Shri Pradip Kumar Das, Judicial Member Date of Hearing : 05-03-2014 Date of Decision : 05-03-2014 FINAL ORDER No.40209/2014 Per Pradip Kumar Das Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) insofar as the refund claim filed by the Respondent under Rule 5 of Cenvat Credit Rules, 2002 was not hit by limitation.
2. The relevant facts of the case, in brief, are that the respondents are engaged in the manufacture of textile articles falling under Chapter 62 of the Central Excise Tariff Act, 1985. The respondents filed a refund claim on 29.3.2005 of Rs.12,76,088/- under Rule 5 of Cenvat Credit Rules for the goods exported during the month of February and March 2004. The respondents availed cenvat credit on various inputs which were utilized in the manufacture of finished goods duly exported. Refund claim was filed as they could not utilize the credit. The adjudicating authority rejected the refund claim on two counts,, the respondents availed drawback claim for some portion of refund and the entire refund claim is barred by limitation. The Commissioner (Appeals) modified the adjudication order in so far as it has been held that refund claim is not barred by limitation. Regarding utilization of the drawback claim, the Commissioner (Appeals) directed the adjudicating authority to reconsider the same with certain direction. Revenue filed this appeal against the impugned order insofar as it has been held that refund claim is not hit by limitation.
3. The Ld. Authorized Representative on behalf of Revenue submits that clause (6) of Appendix to Notification No. 11/2002-CE (NT) dt. 1.3.2002 is particularly mentioning that refund claim has to be filed before expiry of the period specified in Section 11B of the Central Excise Act, 1944. Subsequently, Notification No.11/2002 (supra) was amended by Notification No.49/2003-CE (NT) dt. 17.5.2003 and the claim for such refund may be made for each calendar month. He submits that the Commissioner (Appeals) erroneously proceeded on the basis of filing of quarterly return which is contrary to the amending notification. He further submits that Section 11B categorically prescribes the relevant dates in respect of the export of the goods. He relied upon the decision of the Tribunal in the case of Rajalakshmi Textile Processors P. Ltd. Vs CCE Salem 2005 (188) ELT 123 (Tri.-Chennai).
4. On the other hand, Ld. Advocate on behalf of the respondent submits that the Commissioner (Appeals) passed the order following the decision of the Tribunal in the case of STI India Ltd. Vs CCE - 2004 (175) ELT 474 (Tri.-Del.). He submits that the Hon'ble Madhya Pradesh High Court in STI India Ltd. Vs CCE 2009 (236) ELT 248 (M.P) held that merely because refund claim application was not filed strictly within 6 months before the expiry period specified in clause (6) of Appendix read with Section 11B of Central Excise Act, 1944, but was filed later by 28 days could not have been made the sole ground for rejection of refund application as barred by limitation. In the case of CCE Jalandhar Vs JCT Ltd. 2013 (296) ELT 426 (Tri.-Del.) following the decision of the Hon'ble Madhya Pradesh High Court in the case of STI India Ltd. (supra), the Tribunal held that since "relevant date" on counting limitation period not existing for cash refund under Rule 5 of CCR, the refund claim is not hit by limitation.
5. After considering the submissions of both sides and on perusal of the records, I find that, in the present case, the period of refund claim is January 2004 to March 2004 and the claim was filed on 29.3.2005. The Commissioner (Appeals) following the decision of the Tribunal in the case of STI India Ltd. (supra) observed that refund shall be allowed only in those cases where the manufacturer is not in a position to utilize credit of the duty allowed under Rule 57A of the erstwhile Central Excise Rules, 1944 against goods exported during quarter to which the scheme relates. The Commissioner (Appeals) also observed that refund claim was filed within a period of one year from the quarter ending March 2004. It is seen that the Hon'ble Madhya Pradesh High Court in the case of STI India Ltd. (supra) held as under :-
"7.?In our opinion, merely because the refund application was not filed strictly within 6 months before expiry of period specified in Clause 6 of Appendix read with Section 11B ibid but was filed late by 27 days could not have been made the sole ground for the rejection of application as barred by limitation. Infact, the claim in question did not fall strictly within the forecorners of Section 11B but it essentially fell within the forecorners of Clause 6 of Appendix to notification issued under Rule 57F."
6. The Division Bench of the Tribunal in the case of JCT Ltd. (supra) held as under :-
"6.?Coming to the question of limitation, which is in respect of the claim for April, 2002 to June, 2002 period, Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002 issued under Rule 5 of the Cenvat Credit Rules, 2002 provides that the application in the prescribed form for cash refund of the accumulated credit, which the manufacturer cannot use for payment of duty on the clearances for home consumption, must be submitted to jurisdictional Dy./Asstt. Commissioner before the expiry of the period, specified in Section 11B of the Central Excise Act, 1944, along with proof of export and other records. Earlier, when the provisions of cash refund of accumulated credit were in Rule 57F(4) of the Central Excise Rules, 1944, the notification issued under Rule 57F(4) had similar provisions. While the notification issued under Rule 5 of the Cenvat Credit Rules, 2002, simply provides that claim for cash refund under Rule 5 must be filed with the Dy./Asstt. Commissioner before expiry of the period specified in Section 11B, neither in this notification nor in Section 11B, there is any provision as to from which date the limitation period prescribed under Section 11B is to be counted. The relevant date for the purpose of counting limitation period under Section 11B is defined in Explanation B to Section 11B. But it does not cover the claims for cash refund of accumulated credit under Rule 5 of the Cenvat Credit Rules, 2002. While Explanation B(a) provides that relevant date in case of goods exported out of India, where a rebate of excise duty paid is available in respect of the goods themselves or as the case may be, the excisable materials used in the manufacture of such goods, shall be the date on which the ship/aircraft, in which the goods are loaded, leaves India in case of export by sea or by air or the date on which the goods cross the land frontier in case of export by land or the date of despatch of goods by post office concerned to a place outside India in case of export by post, this provision cannot be applied to the case of cash refund of accumulated Cenvat credit under Rule 5, as the claim is linked not only with accumulation of Cenvat credit in respect of the inputs used in the manufacture of goods cleared for export under bond, the same is also linked with the manufacturers inability to utilise this credit for payment of duty on the clearances for home consumption. For this reason only, the Tribunal in the case of Hindustan Motors Ltd. (supra) has held that in respect of cash refund of accumulated credit filed under Rule 57F(4), the limitation period prescribed in Section 11B is not applicable. Same view has been taken by the Honble Madhya Pradesh High Court in the case of STI Ltd. (supra), wherein Honble High Court has held that strict law of limitation provided under Section 11B of the Central Excise Act would not apply to a claim for cash refund of accumulated credit made in terms of the notification issued under Rule 57F, as in such a case the requirement of filing of claim within the limitation period provided under Rule 11B is procedural in nature rather than mandatory. Moreover any limitation for filing any claim, appeal, etc., prescribed under any law, has two components - the period of limitation during which the claim, appeal, etc., is to be filed and the date from which the limitation period is to be counted. If the date from which limitation period is to be counted is missing, it would amount to not prescribing any limitation period. In view of this, we hold that the claim for the period from April, 2002 to June, 2002 is not hit by limitation."
7. An attempt was made by the Ld. AR that decision of JCT Ltd. (supra) would not apply in this case as in that case, it was related to EPCG scheme and he submits that both the case laws related to Rule 57F of the erstwhile Central Excise Rules and therefore it is not applicable in the present case. I find that Rule 57F is pari materia to Rule 5 of the Cenvat Cedit rules, 2004. It is noted that both the cases, JCT Ltd. (supra) and STI India Ltd. (supra) are related to refund of unutilized credit on the exported goods. In the present case, I find that refund claim was filed on the unutilized credit on the export goods. Hence I do not find any merit in the submission of Ld. AR.
8. Respectfully following the decision of Hon'ble Madhya Pradesh High Court in the case of SKI India Ltd. (supra) and the decision of the Tribunal in the case of JCT Ltd. (supra), I do not find any reason to interfere with the order of Commissioner (Appeals). Accordingly, the appeal filed by Revenue is rejected.
(Dictated and pronounced in open court) (PRADIP KUMAR DAS) JUDICIAL MEMBER gs 2