TMI Blog2017 (10) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... al dismissed - decided against Revenue. - E/87475 to 87477/16 & E/CO/91001 to 91003/17 - A/89813-89818/17/SMB - Dated:- 27-9-2017 - Shri Raju, Member (Technical) Shri V.K. Agarwal, ADC (AR) for the appellant Shri Rajiv Gupta, Representative for the respondent ORDER Per: Raju These three appeals have been filed by revenue. Respondent Asha Industries have also filed three cross objections in this regard. 2. Ld. AR pointed out that the appellants are a declarant unit and have filed a refund claim under Rule 5 of the Cenvat Credit Rules. He pointed out that the appellants have availed cenvat credit though they are not registered as their clearances are below the threshold limit prescribed in law. Ld. AR argued that the appellants have not exported the goods under bond. He argued that the export under bond is primary requirement under Rule 5 which reads as under:- Rule 5 of Cenvat Credit Rules, 2004 reads as under:- Rule 5 A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an out service which is exported without payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, on the ground that in the said case the unit was registered unit who had taken cenvat credit of duty paid on the inputs used in the manufacture of final products. 5. Ld.counsel for the respondents argued that Hon'ble High Court in Repro India Ltd. (supra) has ruled that cenvat credit is available in respect of inputs used in manufacture of final products being exported irrespective of the fact that the final product is otherwise exempted. He argued that it leads to the conclusion that credit is available even if the goods are unconditionally exempted. He specifically relied on para 8 and 9 of the said decision, which reads as under:- 8. The Cenvat credit is allowed n (sic) the duty paid on inputs to mitigate the effect of double taxation of levying duty on inputs as also on the final product. If, however, the exempted final product is exported it calls for a special relaxation/dispensation to make the goods of the country internationally competitive. As an illustration suppose a final product like tractor is otherwise exempted from excise duty even for domestic consumption and such tractors are exported. The various inputs like engines, etc., used in the tractor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport under bond. Rule 6(6)(vi) relates to gold or silver arising during refining of copper. These are exempt from payment of duty by Notification No. 5/2006-C.E., dated 1st March, 2006. It would thus be clear that all the clauses of Rule 6(6) are enacted only to deal with the situation when the final products are exempt from payment of duty. If a final product is not exempted from duty, Rule 6(1) is not attracted at all and hence Rule 6(6) is unnecessary. Rule 6(6) is precisely needed only when the final products are exempt from payment of duty. In this context the Revenue itself has accepted that under the provisions of Cenvat Credit Rules, 2002 there were provisions for removal of exempted goods under bond but the same was not available with effect from 9th September, 2004 under Cenvat Credit Rules, 2004. We may reproduce Rule 6(5) of the Cenvat Credit Rules, 2002 which reads as follows :- (5) The provisions of sub-rule (1), sub-rule (2), sub-rule (3) and sub-rule(4) shall not be applicable in case the exempted goods are either - (i) cleared to a unit in a free trade zone; or (ii) cleared to a unit in a special economic zone; or (iii) cleared to a hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods exported under bond. The minor change in the wordings of Rule 6(6) of the Cenvat Credit Rules, 2004 by using the term excisable goods instead of exempted goods is that the term exempted goods may not cover the dutiable goods which are exported under bond. Therefore, in order to widen and cover both dutiable and exempted goods exported under bond, Rule 6(6) of Cenvat Credit Rules, 2004 uses the expression excisable good . As an illustration, if a car which is dutiable is exported under bond without payment of duty there may be doubt as to whether credit on the inputs will be available, since the car is cleared without payment of duty under Rule 6(5) of Cenvat Credit Rules, 2002. It could be argued that it covers only the exempted goods exported and not dutiable goods exported. In order to cover such a situation also, Rule 6(6) of Cenvat Credit Rules, 2004 used the expression excisable goods which is wider to include both dutiable as well as exempted goods. 6. Ld. Counsel for the respondent further relied on the decision in CCE Vs. Drish Shoes Ltd. - 2010 (254) ELT 417 (HP) and argued that the Hon'ble High Court has ruled that an assessee manufacturing goods chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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