TMI Blog2017 (10) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... E(NT) dated 1.3.2002 whether the appellant is entitled for refund claim or not? - Held that: - This issue has already been settled by this Tribunal in the case of CCE, Jaipur II vs. Bhilwara Spinners Ltd. [2007 (11) TMI 249 - CESTAT, NEW DELHI], where it was held that refund claim u/r 5 of Cenvat Credit Rules cannot be denied unless the assessee claimed drawback or rebate - It is an admitted fact that in this case, the appellant has not claimed draw back of duty / rebate on the exported goods. Therefore, the provisions of N/N. 11/2002 CE (NT) dated 1.3.2002 are not restricting the claim of refund under Rule 5 of CCR, 2004, filed by the appellant - refund allowed. Refund allowed - decided in favor of appellant. - Excise Appeal No. 52100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that both the issues have been settled by the Tribunal in their own case with regard to AED (T TA) and same was allowed to be refunded under Rule 5 of Cenvat Credit Rules, 2004. It is further submitted that in the case of CCE, Jaipur vs. Bhilwara Spinners Ltd. [2008 (226) ELT 222 (Tri-Del) ], it has been held that in terms of notification No. 11/2002-CE(NT) dated 1.3.2002, refund claim under Rule 5 of Cenvat Credit Rules, 2004 is not maintainable if the assessee is claiming rebate /drawback and duty paid on inputs. It is his submission that as they have not claimed draw back/rebate on the export goods, therefore, they are entitled to refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004. 4. Learned AR reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for the different two types of duties and they could have maintained only one consolidated CENVAT credit account. The amount of BED refunded to the appellant was to the tune of ₹ 75.74 lakhs. The same was debited by them from their CENVAT credit account of BED and there is no dispute about the same. 3. The dispute relates to the sanction of refund claim of ₹ 11.36 lakhs AED (T TA). As the appellant was having a balance of ₹ 4.91 lakhs under the said heading, they debited the same from the said account and the remaining amount of ₹ 6.46 lakhs approximately from the CENVAT credit account BED. 4. The lower authorities have confirmed the said amount of ₹ 11.36 lakhs of AED (T TA), which was refunded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 3, Sub-rule 4, the CENVAT Credit availed by an assessee either in respect of BED or in respect of AED can be utilised for payment of any duty of excise on any final product. As such, it is clear that BED and AED could have been utilised for payment of each other. As such, the appellant s contention that they could have utilised BED which was surplus with them, for payment of AED and could have saved AED for reversal of the sanctioned amount has merits. Commissioner (Appeals) rejected the said contention on the sole ground that the appellant has not maintained their CENVAT credit account in the manner they should have maintained and in the manner which now pleaded by them. The said manner which stands pleaded, by the appellant is not agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reproduced below :- In the impugned orders, the lower authorities have denied refund of accumulated Cenvat credit of ₹ 1,98,82,260/- to the appellants. The appellants have exported the final products during the period July, 2002 and September, 2002 the shipments were made under the DEPB scheme as evidenced from the export documents. Hence, it is not in doubt that they have not availed of any drawback of the input duty. It is the stated policy of the Govt. to promote exports and the minimum assistance the authorities below can extend is not to cause impediments in implementing clear policies of the Govt. It is no one s case that the exporter should bear the domestic levy on inputs or pass it in turn to the foreign buyer makin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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