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2006 (3) TMI 6 - AT - Central ExciseRefund of the accumulated credit - Notification No. 11 /02-C.E. (N.T.) - credit in terms of Rule 5 - Denial on the ground that computation of the amount of credit was on average basis; that the assessee have not utilized the credit for subsequent clearances; that Rule 5 is not applicable in respect of the credit availed on one time basis in terms of the provisions of Rule 9A - HELD THAT:- We agree with the id. Advocate appearing for the appellant that the provisions of Rule 5 relating to refund of Modvat credit accumulated in the records on account of their non utilisation for the exported goods is a beneficiary piece of legislation, the refund arising on account of the same cannot be denied being a substantive right of the citizen. The wording of Rule 5 read with Rule 3 are very clear providing for refund of accumulated Modvat credit if the same cannot be adjusted for any reason. As such the only condition in the said Rule is non-utiisation of the credit and no-jurisdiction vests in the Central Excise officer to find out the reason for such non-adjustment. The use of the expression that "where for any reason" such adjustment is not possible, the manufacturer shall be allowed refund of such amount is an unlimited expression and cannot be narrowed or curtailed down by the departmental authorities. Thus, we set aside the impugned order and hold that the appellant is entitled to the refund of the accumulated credit which shall be quantified by the authority below, after looking into their records for which purposes we remand the matter to the original adjudicating authority. The appeal is disposed of in above terms.
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