No limitation applies to CENVAT credit refunds under Rule 5 where Section 11B lacks relevant date definition for service exports.

SOMESH ARORA:

Briefly the facts of the present case are as follows:-

These two appeals have been filed by M/s Provana India Pvt. Ltd., as the appellants) against the orders of appellate authority as detailed in table below, The Adjudicating Authority vide its orders had partially sanctioned the refund claim filed by the appellants.

The order was upheld in appeal by Commissioner (Appeals)

2. Briefly stated, the appellants were registered with Service Tax under the category of Business Support Services. The appellants had filed claims for refund of unutilized CENVAT credit availed on input services used for exporting the Business Support Services and Information Technology Software Services. The claims were filed under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification 27/2012-CE (NT) dated 18.06.2012. They had submitted the relevant documents viz copy of export/Commercial invoices. Reconciliation statement with respect to FIRO and expert invoices, copy of bank statements/ ledger, unjust enrichment certificate by CA, copy of input invoices, copy of Cenvat credit Register etc. along with the refund application.

2.1 The Appellants had filed the online refund claim on quarterly basis for the period April-2014 to September-2015 on 18.01.2016 and for the period October-2015 to June-2017 on 22.09.2017 along with relevant documents under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification 27/2012- CE (NT) dated 18.06.2012. The Adjudicating Authority (AA) upon scrutiny of the documents/claims submitted by the appellant partially rejected the refund claim on the grounds that the appellants had filed the part of the refund claims after expiration of one year for filing the refund, so claims being time barred could not be held admissible. The order when appealled against was equally rejected on point of limitation by the learned Commissioner (Appeals). The present appeals have therefore emanated from the impugned order of Commissioner (Appeals).

2.2 On the point of limitation, inter alia, party has taken various grounds in appeal, as are part of the record and have relied upon the decision of the Division Bench of this Tribunal in the matter of C.C.E., Jalandhar Vs. JCT Ltd dated 17.06.2013, as reported in 2013 (296) E.L.T. 426 (Tri.-Del) in which relevant para 6 is reproduced below:

"Coming to the question of limitation, which is in respect of the claim for April, 2002 to June, 2002 period, Notification No 11/2002-C.E. (N.T), dated 1-3-2002 issued under Rule 5 of the CENVAT Credit Rules, 2002 provides that the application in the prescribed form for cash refund of the accumulated credit, which the manufacturer cannot use for payment of duty on the clearances for home consumption must be submitted to jurisdictional Dy./Asstt. Commissioner "before the expiry of the period, specified in Section 11B of the Central Excise Act, 1944" along with proof of export and other records. Earlier, when the provisions of cash refund of accumulated credit were in Rule57F(4) of the Central Excise Rules, 1944, the notification issued under Rule 57F(4) had similar provisions. While the notification issued under Rute 5 of the CENVAT Credit Rules, 2002, simply provides that claim for cash refund under Rule 5 must be filed with the Dy./Asstt. Commissioner before expiry of the period specified in Section 11B. neither in this notification nor in Section 11B, there is any provision as to from which date the limitation period prescribed under Section 11B is to be counted. The relevant date for the purpose of counting limitation period under Section 11B is defined in Explanation B to Section 11B. But it does not cover the claims for cash refund of accumulated credit under Rule 5 of the CENVAT Credit Rules, 2002. While Explanation B(a) provides that "relevant date" in case of goods exported out of India, where a rebate of excise duty paid is available in respect of the goods themselves or as the case may be, the excisable materials used in the manufactu