Page 149 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SURETEX PROPHYLACTICS INDIA PVT. LTD. v. C.C.E., CUS. & S.T., BANGALORE 483

1944, Rule 5 of the CCR, 2004 and Notification No. 5/2006-C.E.
(N.T.), dated 14-3-2006 and 27/2012-C.E. (N.T.), dated 18-6-2012?
(ii) Whether the Tribunal is justified and right in holding that the “rele-
vant date” for computation of the time-limit for submission of claim
for refund of unutilized CENVAT credit under Rule 5 of the Cenvat
credit Rules, 2004 will be the end of the quarter in which the FIRCs
are received, when there is no such specification either under Rule 5
of Cenvat Credit Rules, 2004 or Notifications issued thereunder or
Section 11B of the Central Excise Act, 1944 during the relevant peri-
od?
(iii) Whether the Tribunal is right in holding that the limitation of one
year under Section 11B of the CEA, 1944 is applicable for refund of
untilized CENVAT credit when the CENVAT Credit Rules, 2004 has
not prescribed any time-limit either for taking credit or its utiliza-
tion and has also not prescribed the “relevant date”?
(iv) Whether the Tribunal is justified and correct in upholding rejection
of the refund claims contrary to law declared by the jurisdictional
Hon’ble High Court in the case relied on by the Appellant?
(v) Whether the Tribunal is justified in denying substantive right of
claim for refund of unutilized Cenvat credit merely on procedural
grounds, if any?”
CEA No. 25/2018 has been admitted on 30-5-2019. Since following sub-
stantial question of law had not been formulated, we frame the following sub-
stantial question of law after hearing Learned Advocates appearing for parties.
(i) Whether the time-limit of one (1) year as prescribed under Section
11B of the Central Excise Act, 1944, would be applicable for claim-
ing refund being the accumulated CENVAT credit?
The facts in these appeals being slightly different, they are enumerated
hereinbelow for the purposes of convenience.
RE : CEA Nos. 31/2017, 32/2017 and 33/2017 :
3. Appellant is engaged in the manufacture and export of rubber con-
traceptives falling under Chapter Heading 4014 10 10 of Central Excise Tariff Act
(CETA), 1985 and it is a 100% Export Oriented Unit holding Private Bonded
Warehousing Licence. Appellant is availing CENVAT credit facility under
CENVAT Credit Rules (CCR), 2004 (hereinafter referred to as ‘CENVAT Rules’).
Appellant filed three (3) refund claims under Rule 5 of CENVAT Rules for
Rs. 92,478/-, Rs. 12,24,538/- and Rs. 5,18,920/- for the period April 2007 to June
2007; July 2007 to September 2007 and October 2007 to December 2007. The orig-
inal authority by order dated 28-3-2013 rejected the claim on the ground it was
time-barred. Commissioner (Appeals) set aside the said order on the ground that
limitation prescribed under Section 11B of the Central Excise Act, 1944 (for short
‘Act’) does not apply for a accumulated Cenvat Credit. Revenue filed appeals
before CESTAT and Tribunal after considering the rival contentions by order
dated 2-12-2016 has allowed the appeal of Revenue by setting aside the order of
the appellate authority and restored the order of the original authority by opin-
ing that refund claim has to undergo the scrutiny of limitation provided under
the Act and as such accepted the plea of the revenue.
EXCISE LAW TIMES  15th August 2020  149