Custom, Excise & Service Tax Tribunal
M/S Adf Foods Ltd. (100% Eou) vs Commissioner Of Central Excise & ... on 10 March, 2015
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. E/623/10-Mum (Arising out of Order-in-Appeal No. AKP/10/NSK/2010 dated 19.01.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik). For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) ========================================================
1. Whether Press Reporters may be allowed to see : No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental :Yes authorities? ======================================================== M/s ADF Foods Ltd. (100% EOU) : Appellant Versus Commissioner of Central Excise & Customs, Nasik : Respondent Appearance Shri Vinod Awtani, C.A. : For Appellant Shri N.N. Prabhudesai, Supdt. (A.R.) : For Respondent CORAM: Honble Mr. Ramesh Nair, Member (Judicial) Date of Hearing : 10.03.2015 Date of Decision: 10.03.2015 ORDER No. . Per: Ramesh Nair
The appeal is directed against Order-in-Appeal No. AKP/10/NSK/2010 dated 19.01.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik, wherein the learned Commissioner (Appeals) rejected the appeal filed by the appellant.
2. The fact of the case is that the appellant filed a refund claim under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 05/2006 CE (NT) dated 14.03.2006 for Rs 2,33,923/- for the quarter ending June, 2007. The claim was filed on 04.07.2008 i.e. after completion of one year from the end of the quarter. The original adjudicating authority had rejected the said claim being time barred vide Order-in-Original No. 919/R/2009 dated 18.09.2009. Being aggrieved by the said Order-in-Original the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal holding that refund claim was filed beyond the time period of one year from the date of export provided Section 11B of the Central Excise Act, 1944, hence time barred.
3. Shri Vinod Awtani, learned C.A. appearing on behalf of the appellant submits that the refund claim was filed under Rule 5 of CENVAT Credit Rules, 2004. It is his submission that limitation provided under Section 11AB is applicable only in respect of refund of Excise duty paid on the goods exported or as the case may be the excisable material used in the manufacture such as export goods. In the present case, the refund was sought in respect of the accumulated CENVAT credit which does not fall under sub-clause (a)(b) of explanation provided under sub-Section (5) of Section 11B. He also submits that since the appellant has claimed the refund of accumulated CENVAT credit, it is neither claim of duty paid on export goods nor claim of duty paid on excisable material used in the manufacture of export goods. The learned C.A. has placed reliance on the following judgments
(i) Global Energy Food Industries Vs. CCE, Ahmedabad 2010 (262) ELT 627 (Tri.-Ahmd.)
(ii) CCE, Ahmedabad Vs. Rangdhara Polymers 2011 (264) ELT 275 (Tri-Ahmd.)
(iii) Elcomponics Sales Pvt. Ltd. Vs. CCE, Noida 2012 (279) ELT 280 (Tri.-Del.)
(iv) STI India Ltd. Vs. Commissioner of Customs & Central Excise, Indore 2009 (236) ELT 248 (M.P.)
(v) Commissioner of Customs & Central Excise, Surat-I Vs. Swagat Synthetics 2008 (232) ELT 413 (Guj)
(vi) Commissioner of Customs & Central Excise, Ahemdabad-I Vs. Anjani Synthetics Ltd. 2001 (132) ELT 688 (Tri.-Mumbai)
4. On the other hand Shri N.N. Prabhudesai, Learned Supdt. (A.R.) reiterates the findings of the impugned order. He further submits that as per para number 6 of Notification No. 5/2006-CE (NT). It is clearly provided that the refund application under Rule 5 should be submitted before the expiry of the period specified under Section 11B of the Central Excise Act, 1944. As per this statutory provision refund filed beyond one year from the date of export will be come time barred. As regard the judgment relied upon by the learned Counsel, he submits that all the judgment cited by the learned Counsel become over ruled in the following judgments
(i) CCE, Coimbatore Vs. GTN Engineering (I) Ltd. 2012 (281) ELT 185 (Mad.)
(ii) Affinity Express India Pvt. Ltd. Vs. CCE, Pune-I 2015 (37) STR 321 (Tri.-Mumbai)
(iii) Affinity Express India Pvt. Ltd. Vs. CCE, Pune-I 2015 (37) STR 333 (Tri.-Mumbai) He submits that in view of the above cited judgments, it is settled that the time limit of one year has provided under Section 11B is applicable in the present case.
5. I have carefully considered the submissions made by both sides.
6. The fact in this case is that refund claim for the period June, 2007 was filed on 04.07. 2008, therefore the refund filed beyond the period of one year. However on the issue that whether the time limit of one year has provided under Section 11B is applicable for refund under Rule 5, I find that para 6 of the Notification No. 5/2006 CE (NT) issued under Rule 5 of the CENVAT Credit Rules, 2004 provide as under:-
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). From the above clear unambiguous provisions, it is clear that in the case of refund under Rule 5 of CENVAT Credit Rules, 2004 application for refund mandatorily to be filed before the expiry of period specified in Section 11B. I have gone through the Section 11B, relevant portion of the Section 11B is 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 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.
(2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of duty of excise and interest, if any, paid on such duty as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to
(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b) unspent advance deposits lying in balance in the applicants account current maintained with the Commissioner of Central Excise;
(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;
(d) the duty of excise and interest, if any, paid on such duty paid by the manufacturer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(e) the duty of excise and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(f) the duty of excise and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the? Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).
(4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
(5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of? the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.
[Explanation. For the purposes of this section, -
(A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(B) relevant date means, -
(a) in the case of goods exported out of India where a refund 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, -
(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, leaves India, or
(ii) if the goods are exported by land, the date on which such goods pass the frontier, or
(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;
(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;
(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;
(eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof;
(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;
(f) in any other case, the date of payment of duty. From the above clause A of the explanation, refund covers the duty of excise on excisable materials used in the manufacturing of goods which are exported out of India. In the present case, the refund is in respect of duty paid on material used in export goods. As per Section 11B(1), the application for refund should be filed before the expiry of one year from the relevant date. As per the definition of relevant date as mentioned above, as per sub-clause A and B where the refund of excise duty paid in respect of the excisable material used in the manufacture of export goods, the relevant period is one year from the date of export.
It is also observed that from clause (c) of proviso to sub-section 2 of Section 11B, it is clear that the refund of credit of duty paid on excisable goods used as inputs in accordance with Rule made, or under this Act, is also covered under Section 11B. The present claim being under Rule 5 and Notification No. 5/2006 CE (NT) issued there under clearly falls under the said sub-Section (c). In view of this provision, it cannot be said that the time limit of one year as provided under Section 11B is not applicable to refund of Rule 5 of CENVAT Credit Rules, 2004, particularly, when there is a specific para 6 of Notification No. 5/2006 CE (NT) which prescribes the time limit of one year.
As regards the various judgments relied upon by the appellant, I find that the judgment of Swagat Synthetics (supra) of Hon'ble High Court of Gujarat has been distinguished and judgment of STI India Ltd. (supra) of Hon'ble High Court of Madhya Pradesh has been departed and in the latest judgment of Hon'ble High Court of Madras in the case of GTN Engineering (I) Ltd. (supra), wherein Hon'ble High Court of Madras held that as under:-
11.?We have carefully considered the above said submissions. The relevant portion in Section 11B of the Central Excise Act, 1944, reads as under :
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 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 or interest, if any, paid on such duty] had not been passed on by him to any other person.
12.?By that provision, a claim for refund is made available in case of refund of duty and interest, if any paid on such duty and as far as that provision is concerned, there is no dispute that it is applicable only in case of duty paid and not on the CENVAT credit facilities. As already pointed out, to tide over the situation and also to make eligible for the manufacturer of the final products which is 100% export oriented, Rule 5 of the CENVAT Credit Rules, 2004, entitles for making claim for refund of CENVAT credit and the relevant portion of the said rule reads as under :
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, CENVAT credit in respect of the input or input service so used 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 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.
13.?In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly, Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 has issued. Clause 6 appendix to the notification reads as under :
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).
14.?The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules, 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for such claim, the said provision must be read to find out as to the relevant date. Rule 5 specifies that where any input or input service is used in the manufactures 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 CENVAT credit in respect of the input or input service so used shall be allowed.
15.?A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of CENVAT credit. Admittedly, the respondent has made a claim only invoking Rule 5 of the CENVAT Credit Rules, 2004. In that view of the matter, there cannot be any difficulty for us to hold that the relevant date should be the date on which the export of the goods was made and for such goods, refund of CENVAT credit is claimed.
16.?The learned counsel for the respondent would rely upon a judgment of the Gujarat High Court reported in 2008 (232) E.L.T. 413 (Guj.) [Commissioner of Central Excise and Customs, Surat-I v. Swagat Synthetics]. That was a case relating to sub-rule (13) of Rule 57F of Central Excise Rules, 1944, which reads as under :
(13)?Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in according with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilised 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 in the Official Gazette. The said rule does not prescribe any time-limit. In the absence of such prescription as to the limitation, the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation.
17.?The learned counsel would also rely upon a Judgment of Madhya Pradesh High Court at Indore reported in 2009 (236) E.L.T. 248 (M.P.) [STI India Ltd. v. Commissioner of Customs and Central Excise, Indore]. In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944, cannot be made applicable insofar as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based on the rules and the notification which are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act.
18.?In view of the above, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. Accordingly the same is set aside. From the above judgment it is clear that Hon'ble High Court of Madras has considered both the judgments of Swagat Synthetics (supra) and STI India Ltd. (supra) which were relied upon by the appellant and both the judgment distinguished and departed and in accordance with the ruling laid down by Hon'ble High Court of Madras in the case of GTN Engineering (I) Ltd. (supra) time limit of one year is applicable in the case of refund under Rule 5 and Notification No. 5/2006 CE (NT) issued there under. In view of above settled position, I am of the considered view that refund of the appellant filed after statutory time limit of one year is not admissible being time barred. Therefore, the impugned order is sustainable and the same is upheld. The appeal is dismissed.
(Pronounced in Court) Ramesh Nair Member (Judicial) Sp/ 13