2013 (11) TMI 1386 - AT - Central Excise

Rejection of refund claim Cash refund on accumulated cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 r.w Notification no.05/2006-CE (NT) Attested shipping bills required to be submitted Held that - The ground of which the refund claim has been rejected is not correct as the condition of notification is that copies of relevant shipping bill of export duly certified by the Customs Officers to the effect that the goods have been exported must be produced - what is required to be produced is the copies of the shipping bills containing certification by the Customs Officers regarding export of the goods which is on the EP copy of the shipping bill - If the EP copies of the shipping bills have been mis-placed the photocopies of the original EP copies duly attested by the exporter can also be produced as it contains the certification by the Customs officers certifying the export of the goods relying upon COMMISSIONER OF C. EX. JAIPUR-I Versus UNIMAX GRANITES (P) LTD. 2010 (10) TMI 570 - CESTAT NEW DELHI order set aside Decided in favour of assessee.

Summary

Issues: Refund of Cenvat credit for duty inputs procured by a 100% EOU, rejection of refund claim due to missing original EP copies of shipping bills, interpretation of Notification no. 5/2006-CE (NT) regarding production of certified shipping bills, grounds for cash refund denial under Rule 5 of Cenvat Credit Rules, 2004.

Analysis:
The appellant, a 100% EOU, availed Cenvat credit for duty inputs but could not utilize it for excise duty payment on goods cleared for home consumption. They applied for a cash refund of the accumulated Cenvat credit for 44 shipping bills filed from April 2009 to September 2009. The original EP copies of 24 shipping bills were produced, while for the remaining 20 exports, only photocopies attested by the appellant were available as the original EP copies were lost. The department rejected the refund claim for the 20 shipping bills without original EP copies, citing non-compliance with Notification no. 5/2006-CE (NT) requiring certified shipping bills. The Adjudicating Authority and Commissioner (Appeals) upheld the rejection, leading to the appeal.

The appellant's counsel argued that the goods covered by the shipping bills were duly exported and accepted by the competent authority, making the cash refund denial unjustified. Reference was made to a Tribunal judgment in a similar case supporting the appellant's position. The Departmental Representative reiterated the necessity of producing original EP copies as per the notification's conditions.

The judge, after considering both sides' submissions and reviewing the records, found that the rejection of the refund claim based on missing original EP copies was incorrect. The judge clarified that the notification required copies of shipping bills certified by Customs Officers to prove export, not specifically original EP copies. Therefore, attested photocopies containing Customs Officers' certification could suffice if the EP copies were lost. The judge cited a previous Tribunal decision supporting this interpretation and ruled in favor of the appellant, setting aside the impugned order and allowing the appeal.