Page 158 - ELT_15th August 2020_Vol 373_Part 4

492 EXCISE LAW TIMES [ Vol. 373

From the law laid down by this decision it is clear that all claims for re-
bate/refund have to be made only under Section 11-B with one exception—
where a statute is struck down as unconstitutional. Further, the limitation
period of six months has to be strictly applied.”
Thus, the irresistible conclusion which has to be necessarily drawn is to the effect
that in respect of refund of claims made under Rule 5 of CENVAT Credit Rules,
2004 the provisions of Section 11B of the Central Excise Act would be squarely
applicable. Even in respect of the refund claims made under the CENVAT Credit
Rules, 2004 insofar as it relates to “service providers” under the Finance Act,
1994, the provisions of Central Excise Act, 1944 as specified in Section 83 of the
Finance Act, 1994 would cover the same inasmuch as, Section 11B also finds a
place in Section 83 of the Finance Act, 1994.
12. Though argument is sought to be put forward by contending that
by virtue of notification dated 1-3-2006 specifying the period of limitation, we are
not inclined to accept the same, inasmuch as, Rule 5 of CENVAT Credit Rules
itself clearly specifying that such refund claims would be subject to “such safe-
guards, conditions and limitations as may be specified, by the Central Govern-
ment, by notification” and the above referred Notification No. 5/2006 and
27/2012 clearly specifying in clause (6) and clause 3.0(b) respectively that “before
the expiry of the period specified in Section 11B of the Central Excise Act, 1944”
it cannot be gainsaid by the appellants that provisions of Section 11B of the Cen-
tral Excise Act is not attracted to the refund claims made under CENVAT Credit
Rules, 2004. Hence, we answer the substantial questions of law formulated in
appeals 31/2017, 32/2017, 33/2017 & 25/2018 by holding that refund applica-
tions filed under the CENVAT Credit Rules, 2004 cannot be without reference to
limitation or time prescribed under Section 11B of the Central Excise Act, 1944.
We also answer the substantial question of law formulated in Appeal
No. 35/2018 at question Nos. 1, 3 & 4 to the effect that limitation for claiming
refund of unutilized Cenvat credit should be within the period prescribed under
Section 11B of Central Excise Act.
Re : Substantial Question of Law No. 2 in CEA No. 35/2018
13. In the instant case, the appellant has obtained registration under the
provisions of Finance Act, 1994 in the category of service provider as “scientific
and technical consultancy services”. As the entire taxable services rendered by
the appellant for exporting outside India and on account of appellant not having
any domestic service tax liability, the input service credit availed by it on the tax-
able input services, received by it remained unutilized. Hence, appellant sought
for refund of this unutilized input credit under Rule 5 of CENVAT Credit Rules,
2004 by submitting 16 refund claims. Said applications came to be rejected as not
having been filed within the limitation prescribed under Section 11B of the Cen-
tral Excise Act. While answering substantial questions of law (1), (3) & (4) here-
inabove, we have already held that provisions of Section 11B of Central Excise
Act would be applicable though Section 11B of the Act does not cover refund of
Cenvat credit, Notification No. 5/2006 makes it explicitly clear that for the pur-
pose of relevant date for computing one year prescribed under Section 11B, it has
to be determined by applying Rule 5 of Cenvat Credit Rules, 2004, necessarily the
refund claims ought to have been filed within one year from the relevant date as

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