Custom, Excise & Service Tax Tribunal
Ranchi vs Jindal Steel & Power Ltd on 5 February, 2025
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO. 2
Excise Appeal No. 75722 of 2016
(Arising out of Order-in-Appeal No.42/RAN/2015-16 dated 04.03.2016 passed by
the Commissioner (Appeals), Central Excise & Service Tax, 605, Mahabir Tower,
Main Road Ranchi-834001)
Commissioner of Central Excise and Service Tax, : Appellant
Ranchi
Central Revenue Building,
5-Main Road, Ranchi-834001
VERSUS
M/s. Jindal Steel & Power Ltd., : Respondent
Balkudra, Ramgarh-829141(Jharkhand) APPEARANCE:
Shri P. K. Ghosh, Authorized Representative for the Appellant Shri Vishal Agarwal, Advocate for the Respondent CORAM:
HON'BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL) HON'BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO.75395/2025 DATE OF HEARING / DECISION: 05.02.2025 Order: [PER SHRI R. MURALIDHAR] The respondents are manufacturers of goods which are exported and also are cleared to SEZ without payment of duty in terms of Rule 19 of the Central Access Rules 2002. For such clearances of exports as well as towards SEZ, the appellants have filed their refund claim of CENVAT Credit under Rule 5 of CCR 2004 for the period January 2014 to March 2014. A Show Cause Notice was issued on 24.04.2015 seeking to know as to why the refund claim should not be rejected on various grounds. The Page 2 of 8 Appeal No.: E/75722/2016-DB main ground of the show-cause notice was the refund claim was filed beyond the time limit as specified under section 11B of the CEA 1944. In some cases, it was alleged that the date of export was beyond 31-03-2014 and hence they were not covered in the refund claim for the relevant period.
After due process, the adjudicating authority rejected the reprint claim.
2. On appeal, the Commissioner appeals vide the impugned Order-in-Appeal, has set aside the Order- in-Original and held that the appellants are eligible for the refund claim. Being aggrieved, the revenue is before the Tribunal.
3. The Ld. Authorized Representative appearing on behalf of the appellant Revenue reiterates the findings of the adjudicating authority and submits that the refund claims under Rule 5 were filed beyond the time limit given under section 11B. He also submits that in many cases the exports had taken place after 31-03-2014. Therefore, those claims cannot be made for the quarter ending January to March 2014. In view of these submissions, he justifies the rejection of the refund claim by the adjudicating authority. He submits that the Commissioner Appeals is in error in setting aside the Order-in-Original and granting the refund claim.
5. The Ld. Advocate appearing on behalf of the respondent submits that the refund claim is required to be filed for a particular quarter. Therefore, unless the data for that particular quarter is received by the assessee, they cannot file the refund claim before the date. For example, in case of the quarter January to March, only after 31st March, they will be able to know the data towards the CENVAT Credit taken, the Page 3 of 8 Appeal No.: E/75722/2016-DB details of the exports, total turnover etc. and the turnover of the assessee during that period. Therefore, naturally the refund claim under Rule 5 will be filed in the month of April. This point was not appreciated by the adjudicating authority whereas the Commissioner Appeals has properly appreciated this fact and after applying the statutory provisions correctly and relying on the applicable case laws, set aside the adjudicating authority's order and allowed the refund claim.
6. He further submits that this issue is no more res integra. In the case of the same Respondent in respect of their claim for the earlier period, this Bench vide final order dated 07-06-2018 has held that the assessee would be eligible for the refund claim. He cites the final order number SO/75786/2018 and FO-76544-2018 dated 07-06- 2018 wherein this Bench has decided the issue on identical matter. Relying on this case law and the factual details given in their appeal paper book and synopsis, he submits that the adjudicating authority was in error and the Commissioner Appeals was correct in allowing the refund claim.
7. In respect of the Revenue's claim that the exports were beyond the relevant period he submits that the goods were cleared from the factory premises by 31-03-2014 but they had to reach the port and other customs formalities had to be completed. Only after this actual Let Export Order is issued. The Department is taking the LEO date to allege that the export has taken place subsequently. The Revenue is not considering the fact that the relevant date in this case is the date on which the goods were cleared from the factory premises for Page 4 of 8 Appeal No.: E/75722/2016-DB exports. Only this basis the monthly export figures are arrived at in the Returns filed. Therefore he submits that the adjudicating authority is in error ignoring these details but the Commissioner Appeals was correct in taking the view that the appellant has exported the goods within March 2014 only.
8. In view of these submissions, the Respondent prays that the appeal filed by the Revenue may be dismissed.
9. Heard both sides. Perused the Appeal papers and the written submissions made.
10. We find that the main two grounds on which the refund claim filed by the appellant under Rule 5 of Cenvat Credit Rules 2004, were rejected is on account of (a) the refund claims being filed subsequent to the quarter in which the export has taken place and (b) Secondly, in some cases the exports have been completed in the next quarter.
11. We find that first issue is well covered and no more res integra. The Kolkata Bench in the case of Commissioner of Central Excise & Service Tax, Ranchi vs. M/s. Jindal Steel & Power Ltd. vide Final Order No. 76544/2018 dated 07.06.2018 has come across this issue and has held as under:
"2. The issue involved in the present appeal is regarding the refund application filed by the appellant in terms of Section 11B of Central Excise Act, read with Rule 5 of the CENVAT Credit Rules, 2004. In this case the respondent has filed the refund application on line on 25/04/2015 and submitted the hard copy of the same alongwith relevant documents in the Divisional office on Page 5 of 8 Appeal No.: E/75722/2016-DB 30.06.2015 for refund of CENVAT credit amounting to Rs.4,22,51,651/-, accumulated due to clearance for final products, under LUT, for export without payment of duty. Accordingly, as per department limitation date of filing appeal shall to be 30/06/2015, which is the date on which all the documents the applicant had submitted to the Department.
6. We find that Commr. (Appeal) has decided the issue on the basis of ratio laid down in the case of Deepak Spinner Ltd. Vs. CCE (supra), which relied upon the following the ratio of Hon'ble High Court of M.P. in the case of STI India Vs. CCE (supra). Also the Hon'ble CESTAT has held that similar view was held in the case of Global Food Industries Vs. CCE (supra). It is held in these judgments that the time limit as prescribed under Section 11 B is not applicable in the case of refund of unutilised Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004. Thus the time limit as prescribed in section 11B of Central Excise Act shall not be applicable in the case at hand, we are in agreement with the Commr. Appeal on the finding regarding non adjustment of the duty demand, which have not attained finality against the order of the refund as held in the case of:
(i) Commr. of Central Excise , Bangalore-III Vs. Steela Rubber Works (Unit-III)[2012 (275) ELT 404 (Kar.) 7 Excise Stay No. 75558/2016 Excise Appeal No. 76351/2016 ii) KEC International Ltd. Vs. Commr. of Central Excise and Service Taxm Bhopal[2014 (310) ELT 615 (Tri-
Del.) iii) BSNL Vs. CCE [2014 (36) (STR-Delhi)
8. After going through the case records, we find that the Commissioner (Appeals) has decided the issue relying on the decision in case of Deepak Page 6 of 8 Appeal No.: E/75722/2016-DB Spiner Ltd Vs. CCE,(supra) which is again based on the hon'ble High court of MPs order in case of STI India Vs CCE referred above.
9. Accordingly, the Revenue appeal is dismissed holding the impugned order correct and legal. Stay Petition rejected."
11. We also find that the commissioner appeals has given his detailed findings in the Order in Appeal. The relevant portion is reproduced below:
As far as the question of limitation is concerned, I wish to rely upon the case law of M/s Deepak Spinners Ltd. Vs CCE, Indore reported in 2014 (302) ELT 132 (Tri-Del.) wherein following the ratio of Hon'ble Madhya Pradesh High Court's judgment in the case of STI India Ltd. Vs. CCE, Indore reported in 2009 (236) ELT 248 (M.P.), "Hon'ble CESTAT held that, "8.1 On perusal of explanation B of the Section 11B giving definition of "relevant date" in respect of claims for refund of excise duty on the goods exported out of india, it is seen that this definition of relevant date is applicable only in respect of rebate claim available on export of goods out af india However cash refund under Rule 5 of the Central Excise Rules is not a rebate or refund of the duty paid on excisable goods exported out of India or Excise duty paid on inputs used in manufacture of the goods exported out of India. The refund under Rule 5 is the cash refund of Cenvat Credit accumulated due to export of goods without payment of duty under bond or LUT, which cannot be used by a manufacturer for 'payment of duty on clearance for home consumption and thus this refund claim depends not only upon the accumulation of Cenvat Credit due to clearance without payment of duty for export under bond or LUT, but also on the inability to manufacturer to use the accumulated credit for payment of duty on domestic clearances. Unlike export rebate under Rule 18 of the Central Excise Rules, 2002, where an exporter becomes eligible for rebat immediately after export, for cash refund of accumulated Cenvat Credit under Rule 5 of the Cenvat Page 7 of 8 Appeal No.: E/75722/2016-DB Crdeit Rules, 2002/2004, a manufacturer does not become eligible immediately after export but he has to make an attempt to utilize the Cenvar Credit accumulated due to export under bond/LUT for payment of duty on clearance for home consumption. Therefore, the definition of relevant date as given in clause (a) of Explanation B to Section 11B in respect of export rebate claims, connot be applied o Rule 5 refund claim. There is no other clause of Explanation B to Section 11B which is applicable to the refund claims under Rule 5 of the Cenvat Credit Rules. A limitation prescribed in law always has two components the period of limitation during which the application is to be filed or something is to be done and the date from which the limitation period is to be counted Without prescribing the relevant date, a statutory provision prescribing limitation period is meaningless. Since, the second component of the limitation i.e.the relevant date from which the limitation period is to be counted is missing in clause 6 of the notification 11/2002-CE (NT) dated 1/03/02, in my view the limitation provision in this notification is meaningless. The appeal is allowed"
Also in an identical case of M/s Global Energy Food Industries Vs. CCE, Ahmedabad reported in 2010 (262) ELT 627 (Tri- Ahm.), Hon'ble Tribunal by following the ratio of Hon'ble Madhya Pradesh High Court's judgment in the case of STI India Ltd. Vs. CCE, Indore reported in 2009 (236) ELT 248 (M.P.), held that the time limit under Section 118 would not be applicable to the refund under Rule-5.
In view of the foregoing, I find that, the case in hand is squarely covered by the ratio of decision followed in the above cited case laws. Hence I am also of the considered opinion that, the provisions of Section 11B are not applicable to the impugned refund claim filed by the appellant under Rule 5 of the Cenvat Credit Rules. Hence, the impugned refund claim is not barred by the limitation under section 11B; Held accordingly.
12. A careful reading of the Commissioner Appeals order clarifies that he has also followed the applicable case laws and we also find that Kolkata Page 8 of 8 Appeal No.: E/75722/2016-DB Bench, has also decided the issue holding that the appellant are eligible to get the CENVAT Credit when the refund claim is followed during the next quarter for the refund accruing for the earlier quarter.
13. So far as the other objection about the export taking place during the next quarter, it is quite common that the goods cleared from the factory gate, take sometimes upto 15 to 20 days to finally get exported when the LEO is issued by the Customs Dept. The exports are accounted for in the Monthly Returns, based on the month of their despatch from the factory gate. Therefore, the Commissioner (Appeals) has correctly applied this principle while setting aside the Order in Original.
14. Following the ratio laid down in the case law of Commissioner of Central Excise & Service Tax, Ranchi vs. M/s. Jindal Steel & Power Ltd. decided by this Bench, we uphold the Order in Appeal passed by the commissioner appeals and dismiss the appeal filed by the Revenue.
(Operative part of Order was pronounced in Open court) (R. MURALIDHAR) MEMBER (JUDICIAL) (K. ANPAZHAKAN) MEMBER (TECHNICAL) rkp