Appeal No.E/1165/2011-SM, [Arising out of OIA No.CS/47/DMN/VAPI/2011-12, dt.25.08.2011, passed by Commissioner (Appeals), C.Ex. & S.Tax, Daman]. Case: Ms. Hiral Chemicals Pvt. Ltd Vs Commissioner of C.Ex. & S.Tax, Daman. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Appeal No.E/1165/2011-SM, [Arising out of OIA No.CS/47/DMN/VAPI/2011-12, dt.25.08.2011, passed by Commissioner (Appeals), C.Ex. & S.Tax, Daman] |
| Counsel | For Appellant: Shri K.I. Vyas, Advocate and For Respondents: Shri A. Mishra, A.R. |
| Judges | Dr. D.M. Misra, Member (Judicial) |
| Issue | CENVAT Credit Rules, 2004 - Rule 5 |
| Judgement Date | May 31, 2017 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
Dr. D.M. Misra, (West Zonal Bench At Ahmedabad)
1. Heard both sides.
2. This is an appeal filed against OIA No.CS/47/DMN/VAPI/2011-12, dt.25.08.2011, passed by Commissioner (Appeals), C.Ex. & S.Tax, Daman.
3. Briefly stated the facts of the case are that the Appellants had filed cash refund claim for Rs.24,55,908/- dt.27.02.2008, claiming refund under Rule 5 of CENVAT Credit Rules, 2004. Alleging that the said refund claim is time barred, a Show Cause Notice was issued to them on 21.06.2010, proposing rejection of the same. On adjudication, the refund was rejected after considering the fact that the entire amount of accumulated credit relates to export of goods during the period 2005, hence barred by limitation. On appeal, the learned Commissioner (Appeals) has upheld the said order of the Adjudicating authority. Hence, the present appeal.
4. The learned Advocate for the Appellant submits that the cash refund claim under Rule 5 of CENVAT Credit Rules, 2004, for an amount of Rs.15,72,347/- was filed on 07.02.2007, which was rejected. Later, they filed another refund claim on 17.12.2007, claiming refund of Rs.24,55,908/- which includes Rs.15,72,347/-. It is his contention that since their factory was closed from May 2007 onwards, therefore, they are not able to utilize the said credit, hence eligible to refund of the accumulated credit in cash as per Rule 5 of CENVAT Credit Rules, 2004. In support, the learned Advocate refers to the judgment of Hon'ble Karnataka High Court in the case of UoI Vs Slovak India Trading Co. Ltd 2006 (201) ELT 559 (Kar.), judgment of Hon'ble High Court of Andhra Pradesh in the case of CCE Hyderabad-IV Vs Apex Drugs & Intermediates Ltd 2015 (322) ELT 834 (AP).
5. Per contra, the learned Authorised Representative for the Revenue, on the other hand, submitted that the present refund claim has been made under Rule 5 of CENVAT Credit Rules, 2004 on the ground that the credit has been accumulated in their books of account due to export of the goods and hence cash refund of the same is admissible to them. He submits that in filing of refund claim, the Appellant had not followed the procedure laid down under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE (NT), dt.14.03.2006. It is his contention that the refund of accumulated credit in cash would be admissible if the same is filed within the time limit prescribed under Section 11B of Central Excise Act, 1944 i.e. one year from the...
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