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2015 (9) TMI 1142 - AT - Central Excise100% EOU - Denial of refund claim - Refund of unutilized CENVAT Credit - DTA Clearances of waste and scrap - Held that:- Refund claim of ₹ 10,02,301 filed by the appellant under Rule-5 of CCR was sanctioned by the Adjudicating Authority under OIO Dated 26/05/2008. However, on departmental review the same was set aside by the first appellate authority against which the present appeal is filed. The only grounds taken by the first appellate authority is that unutilized credit could have been utilized for DTA clearances being made by the appellant. However, there is no such restriction under Rule-5 of CCR and he refund notification issued there under .It is apparent from the case records that certain waste/rejects of the Yarn and Fabrics are only cleared in DTA which cannot be exported. If the stand of the department is accepted then no refund will be admissible to an exporter because every manufacture will result into generation of some waste and scrap which has to be cleared in DTA - Decided in favour of assessee.
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