TMI Blog2009 (7) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... y of DTA clearance and if for some reason, the credit cannot be utilised, the refund can be claimed under Rule 5 of Cenvat Credit Rules. After withdrawal of this facility, the appellants purchased LDO on payment of duty and filed refund claim under Section 11B of CEA, 1944 read with Rule 5 of Cenvat Credit Rules, 2004 of Rs.5,09,359/- which has been rejected on the ground that LDO was excluded from the definition of input and therefore the Cenvat credit in respect of the duty paid LDO procured by the appellant was not available. The Commissioner (Appeals) also observed that the rebate of duty paid on the materials used in export is allowed under Rule 18 of CER, 2002, and since the appellants had not followed the procedure, the appellants ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed LDO on payment of duty and filed refund claim under Section 11B of CEA, 1944 read with Rule 5 of Cenvat Credit Rules, 2004 of Rs.5,09,359/- which has been rejected on the ground that LDO was excluded from the definition of input and therefore the Cenvat credit in respect of the duty paid LDO procured by the appellant was not available. The Commissioner (Appeals) also observed that the rebate of duty paid on the materials used in export is allowed under Rule 18 of CER, 2002, and since the appellants had not followed the procedure, the appellants cannot claim rebate also. Hence, the appeal. 2. Learned advocate submitted in the Circular No. 799/32/2004-CX, dated 23-9-04, the Board has observed that the Cenvat credit facility has been ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Refusal to issue CT-3 certificate amounts to compelling the appellant to opt for a particular procedure that is of claiming rebate or supplier claiming terminal excise duty benefit. Further, Section 11B entitles a buyer of the goods also to claim refund if he was not liable to pay the duty or if duty was paid in excess. This aspect has not been considered by either of the lower authorities. In this case, there is no dispute that the appellants being 100% EOU was eligible to get LDO without payment of duty under Notification No. 22/2003 and because of refusal to issue CT-3 certificate, they had to pay the duty which they were not liable to pay. Under these circumstances, the duty paid becomes excess duty and consequently the purchaser bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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