COMMISSIONER OF C. EX., AHMEDABAD Vs. RANGDHARA POLYMERS

JUDGEMENT

(1.) M /s. Rangdhara Polymers (hereinafter referred to as appellants) filed claim for refund of Rs. 4,17,531/ - for accumulated Cenvat credit on the inputs used in the manufacture of excisable goods cleared to a 100% EOU on 3 -7 -2008 as per the provisions of Rule 5 of Cenvat Credit Rules, 2004. While, the Original Adjudicating Authority rejected the refund claim totally on the ground of limitation as well as admissibility, the Commissioner (Appeals) held that appellants are eligible for the refund but also held that a portion of the claim is time -barred, in view of the fact that the period of claim is April, 2007 to June, 2007, whereas the refund claim was made on 3 -7 -2008 and to that extent the claim is time -barred. As a result of the order of Commissioner (Appeals), the appellants have been held eligible for refund of Rs. 1,87,623/ - and balance amount was held to be inadmissible. Both, Revenue as well as appellants are in appeal. Revenue is in appeal against a portion of the order allowing the refund claim and the party is in appeal against the rejection of refund claim on the ground of limitation. Revenue has also filed applications for stay and early hearing. Since the matter was heard in detail and detailed arguments have been presented by both the sides, the appeals filed by both the parties are taken up together for final disposal. In view of this position, stay application is rejected and early hearing application is allowed.

(2.) HEARD both the sides. Learned DR on behalf of the Revenue submitted that Commissioner (Appeals) has erred in coming to the conclusion that appellant is eligible for the refund in view of the decisions of the Tribunal in the case of S.V. Business Private Limited v. CCE, Thane -I - 2006 (198) E.L.T. 408 (Tri. - Mum.) and in the case of Inox Air Products Limited v. CCE, Rajkot - 2007 (212) E.L.T. 287 (Tri. -Ahmd.). He submits that the deemed exports cannot be equated with the exports and Rule 5 of Cenvat Credit Rules provides for refund of accumulated credit only and in the case of exports and not in the case of deemed exports. On the other hand learned Chartered Accountant submits that there are several other decisions of the Tribunal which have taken a contrary view. In Inox Air Product case, the decision was rendered relying upon the decision in the case of Blue Star Limited v. Commissioner - 2003 (155) E.L.T. 322 (Tribunal) and S.V. Business Pvt. Ltd. case. The decision in the case of S.V. Business Pvt. Limited was rendered on the ground that Tribunal had taken a view in the case of Blue Star Limited that goods sent to 100% EOU are one step away from completion of exports and this by itself cannot conclude export. On this basis it was held that claim that goods sent to 100 EOU can be equated with the exports cannot be upheld. They are deemed export but such fiction of law is created only for a specific purpose and cannot be equated with exports in a blanket manner. On the other hand, the learned Chartered Accountant on behalf of the appellants relied upon the decision in the case of Sanghi Textiles Limited reported in 2006 (7) LCX213 = 2006 (206) E.L.T. 854 (Tri. - Bang.). This decision of the Banglore Bench of this Tribunal took note of the decision in the case of S.V. Business Pvt. Ltd. also and came to the conclusion that even in the case of deemed exports, refund is admissible. However, difference between the decisions in the case of Sanghi Textiles and other decisions is that, in the case of Sanghi Textiles, the Tribunal has considered the relevant rules and notifications and came to the conclusion that refund of Cenvat credit is available even in the case of deemed exports. In that case, the Tribunal was considering the admissibility of refund in respect of deemed credit. Further, the same Division Bench which rendered the decision in the case of Inox Air Products Pvt. Limited, considered this issue in the case of Shilpa Copper Wire Industries - 2008 (2) LCX 61 = 2008 (226) E.L.T. 228 (Tri. - Ahmd.) and came to a conclusion that refund is admissible in the case of deemed exports. In view of the above discussions, I find that on merits, Revenue has no case and on the basis of decision of the Tribunal in the case of Sanghi Textiles and Shilpa Copper Wire Industries cited above, the appeal filed by Revenue is required to be rejected.

(3.) COMING to the limitation aspect, the same was considered in the case of Sanghi Textiles and it was held that limitation under Section 11B would not be applicable in the case of refund claim for accumulated credit under Rule 5 of Cenvat Credit Rules, 2004. Further, the learned Chartered Accountant also cited decision of the Tribunal in the case of Anjani Synthetics Limited - 2001 (132) E.L.T. 688 (Tri.), in support of his contention. In the absence of specific provisions related to refund of accumulated credit in Section 11B of Central Excise Act, 1944, the claim of the appellant that time limit is not applicable has to be upheld as similar view was taken in the decision cited above. Accordingly, the impugned order is set aside as regards rejection of refund claim. In the result, appeal filed by the Revenue is rejected and appeal filed by the appellant is allowed. Applications for stay as well as for early hearing also get disposed of.