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2017 (11) TMI 894 - CESTAT ALLAHABADRefund of unutilized CENVAT credit - Proper and original documents relating to details of input used in the export goods, credit availed thereon, stock position of impugned inputs as on 31.03.2006 and Shipping Bills have not submitted by the appellant alongwith the claim in the absence of which claim could not be finalized - Whether refund is sanctionable in case where proper and original document have not been submitted by the appellants at the time of filing but filed subsequently? - Held that: - The argument putforth by the appellant is very clear and leaves no doubt as to the fact that credit lying in balance relates to inputs used in the manufacture of export goods. It is a settled law that certificates issued by the qualified professionals like Chartered Accountant cannot be rejected unless proved wrong by definite evidence - refund allowed. Whether benefits of CBEC Circular No. 828/5/2006-CX dt. 20.04.2006 are admissible to the appellant under the facts and circumstances of the case? - Held that: - Para-4 of the Circular provides that the 80% amount can be refunded within 15 days from the date of filing refund claim, if no demand of short levy is pending recovery. In this regard, since the refund was rejected by the adjudicating authority at the adjudication stage in view of pending demand, the issue whether CBEC Circular was applicable at that material time need not be taken up at this stage. The pendency of demand is an ongoing process which keeps changing from time to time. Hence benefit of circular can be given on merits at the material time only. Whether the AR1 s, Shipping Bills, invoices and other documents submitted with refund application are proper documents for sanctioning refund claim? - Held that: - as proof of export is established and procedural lapses have been rectified by the appellant, it is observed that compliance of the requirements of N/N. 5/2006-CE(NT) dated 14.03.06 has been done - substantial benefit cannot be denied for procedural lapses - refund allowed on this ground. Whether the calculation of credit accrued on inputs claimed to be used in the manufacture of export goods supported by the certificate of Chartered Accountant is acceptable? - Held that: - In Para-4 of the certificate, amount of total credit, credit relating to input used in export goods, credit used in discharging duty liability and the balance lying unutilized has been clearly given which leaves no scope of ambiguity. On the plea of difference in calculation, it is observed that while making the calculation the adjudicating authority has taken into consideration the certificate of Chartered Accountant dated 09.05.06 which is with reference to one model namely SPEEDY only. I have pursued the Bill of material submitted vide letter dated 10.05.06 alongwith Chartered Accountant Certificate dated 09.05.06 as well as grounds of appeal - The adjudicating authority has calculated the figure of ₹ 7,59,38,323/- by multiplying total vehicles by ₹ 2254.50/- P which was not warranted in view of the details given in Para-4 of the certificate dated 09.05.06 which clearly indicates that credit of ₹ 945/- lakhs is attributable to inputs used in export of 24607 scooters and 9076 motor cycles; the fact that credit per vehicle of scooter and motor cycle may not be the same; the fact that ₹ 2254.50P. relates to speedy model of scooter only and has been accepted by the adjudicating authority as mentioned in para-2 of page 7 of the adjudication order. Under the circumstances, the plea of difference in calculation is not sustainable. Whether lack of correlation between invoice ARE-1's and non-mentioning of engine number and chasis number on the Shipping Bill are reasonable cause to reject the refund claim? - Held that: - It is observed that since the lapses are procedural in nature and the export of goods has been proved by the bill of lading as well as the certificate given by the Customs officer on the back of ARE-1's submitted by the appellant, the plea is not sustainable. Whether it is mandatory on the part of the applicants to file the refund claim on quarterly basis? - Held that: - there is no bar under the notification to the file the refund claim on annual basis which is evident from the provisions of para-2 of the notification wherein no such condition has been imposed. It provides that such refund cannot be submitted more than once in a quarter. Under the circumstances the plea is not sustainable and refund is not deniable on this ground. Whether the view of the adjudicating authority that claim is not sanctionable on the grounds of possibilities of its utilization when the factory goes in the production and effects domestic clearance? - Held that: - the appellants have pleaded that the factory of the appellant remained closed and as a result, the credit lying in balance cannot be utilized as there were no domestic clearances - reliance placed in the case of Bishen Dyeing Printing & Weaving Mills [2007 (1) TMI 8 - CESTAT, MUMBAI], where it was held that the credit lying was on account of non-utilization in a particular month and the same cannot be kept pending for the future. As such, the refund is permissible under Rule 5 read with Rule 3 of the Cenvat Credit Rules, 2002. - the balance of credit lying unutilized is refundable to the appellants. Appeal dismissed - decided against Revenue.
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