Custom, Excise & Service Tax Tribunal
M/S Sun Pharmaceuticals Industries Ltd vs Commissioner Of Central Excise, ... on 31 March, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL O-20, New Mental Hospital Compound, Meghani Nagar, West Zonal Bench, Ahmedabad 380 014 -ooOoo- Appeal No. : E/1226/2010 Arising out of OIA-COMMR-A-/14/VDR-I/2010 dt 29/01/2010 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals) -VADODARA-I M/s Sun Pharmaceuticals Industries Ltd - Appellant(s) Vs Commissioner of Central Excise, Customs and Service Tax-VADODARA-I. - Respondent(s)
Represented by For Applicant(s) : Shri A Chordiya, Chartered Accountant For Respondent(s) : Shri S N Gohil, Authorised Representative CORAM :
Dr D.M. Misra, Hon'ble Member (Judicial) Date of Hearing : 13/3/2017 Date of Decision: 31/3/2017 ORDER No. A/10683 / 2017 Per : Dr D.M. Misra, This is an appeal filed against OIA-COMMR-A-/14/VDR-I/2010 dt 29/01/2010 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals) -VADODARA-I
2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of excisable goods falling under Chapter 29 of CETA, 1985. The appellant had filed cash refund claim of accumulated CENVAT Credit for the quarter April 2007 June 2007 on 30.6.2008 under Rule 5 of CCR, 2004. Alleging that the refund claim filed by the appellant was beyond the period of one year, the same was rejected. Aggrieved by the said order, they filed appeal before the Ld Commissioner (Appeals), who in turn, rejected their appeal hence the present appeal.
3. The Ld CA for the appellant submits that for the exports made during the quarter April 2007-June 2007, refund claim was field on 30.6.2008 ie., within one year of the stipulated period prescribed under Notification No 5/2016-CE(NT) dt 14..3.2006 as amended for filing the quarterly refund claim. It is his contention that date of export cannot be considered as the cut off date/relevant date for computation of the period of one year as prescribed under the said Notification in claming refund. In support, the Ld CA for the appellant referred to the decision in the case of CCE&C, Surat I vs Swagat Synthetics, 2008 (232)ELT.413 (Guj.) and John Kells BPO Solutions (I) P Ltd vs CCE&ST, Gurgaon 2016(43)STR.473 (Tri. Chan).
4. Per contra, Ld AR for the Revenue submits that this issue is no more res-integra being decided by the Honble Madras High Court in the case of CCE, Coimbatore vs GTN Engg (I) Ltd 2012(281)ELT.185 (Mad.) and CCE Vs Celebrity Designs India Pvt Ltd 2015(321)ELT.221 (Mad)
4. Heard both sides and perused the records.
5. I find that there is no dispute on the facts that the cash refund of accumulated Cenvat Credit for the quarter April 2007 June 2007 was field by the appellant on 30.6.2008; also, it is not in dispute that if the date of export is considered as the relevant date then the refund application would be hit by limitation. The short issue thus involved is whether the refund is barred by limitation. I agree with the contention of Ld AR for the Revenue that the aforesaid issue is no more res integra as settled by the judgment of the Honble Madras High Court in GTN Enng (I) Ltd case. Taking into consideration, the provisions of Sec 11B of CEA, 1944 and Rule 5 of CCR, 2004, their Lordship observes as follows:
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.
6. Also, the Honble Madras High Court analysing the judgment of Honble Gujarat High Court in the case of Swagat Synthetics case observed that since no time limit has been prescribed under sub Rule (13) of Rule 57F of CER, 1944, hence the principle laid down therein is not applicable to the present case. In these circumstances, I do no find any merit in the argument of the Ld CA for the appellant. Consequently, the impugned order is upheld and the appeal is dismissed.
(Pronounced in the open Court on 31/03/2017 ) (D.M. Misra) Member (Judicial) swami ??
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