TMI Blog2009 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... t because the notification has not been issued at that time, we cannot deny the benefit provided in the Rule – Not. no. 5/06 to be taken as effective from 10.9.04 - refunds pertain prior to 14.03.2006 so this is admissible - ST/14-17/2008 - 75-78/2009 - Dated:- 3-2-2009 - Shri T.K. Jayaraman, Member (Technical) Shri M.V. Ravindran, Member (Judicial) (Final Order Nos. 75-78/2009 dt. 3.2.2009 certified on 3.3.2009 in Appeal Nos. ST/14-17/2008) S/Shri K.S. Ravi Shankar and K.S. Naveen Kumar, Advs. for Appellants Ms. Sudha Koka, SDR for Respondent Per T.K. Jayaraman: All these appeals have been filed against the Order-in-Appeal No. 142/2007-Cus. (B) dated 22.11.2007 passed by the Commissioner of Customs (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, which are directly on this point. a) CCE Vs. Himalaya Granites Ltd. - 2008 (12) STR 328 (T) The refund claims in dispute related to the period subsequent to 10.9.2004 and Rule 5 at the material time empowered the authorities to grant refund of accumulated cenvat credit relating to inputs and input services on account of export of final products under bond b) Bisazza India Pvt. Ltd. Vs. CCE - 2008 (87) RLT 555 (CESTAT-Ahmd.)=2008-TIOL-1926 (T) Held that refund of unutilized service tax credit would be eligible under Rule 5 even prior to issue of Notification No. 5/2006 c) Caliber Point Business Solutions Ltd. Vs. CCE - 2008 (86) RLT 892 (CESTAT-Mum.)=2008 (11) STR 15 (T) Refund under Rule 5 ibid applicable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication had set for consideration. The order is opposed to the Apex Court ruling in the case of CCE Vs. Gammon Far Chems Ltd. - 2003 (54) RLT 856 (SC)=2003 (152) ELT 28 (SC). 6. It was contended that Notification No. 5/2006-CE (NT) dated 14.03.2006 should be considered to be retrospective, being beneficial in nature, since the text and tenor of Rule 5 of the Cenvat Credit Rules, 2004 provided for refund of un-utilized excess cenvat and in view of the transitional Rule 16 of Cenvat Credit Rules, 2004 which makes applicable the old notification issued prior to the introduction of new Cenvat Credit Rules, 2004 from 10.09.2004. Reliance was placed also on the Apex Court ruling in the case of WPIL Ltd. Vs. CCE - 2005 (67) RLT 149 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2004, Rule 5 of Cenvat Credit Rules, which provided refund of Cenvat Credit on input or input service. The said rule is reproduced below: "Where any input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the Cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty or service tax on output service and where for any reason such adjustment is not possible, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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