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TMI Blog2009 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 13-1-2005 to 16-9-2005 under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 11/2002-C.E. (N.T.) dated 1-3-2002 as amended. The claim was rejected by Adjudicating Authority by an Order-in-Original, as the same was not found in accordance with the provisions of rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 11/2002-C.E. (N.T.), dated 1-3-2002 as amended. Aggrieved by such order of the Adjudicating Authority, appellant preferred an appeal to the Commissioner (Appeals). The learned Commissioner (Appeals) after granting a personal hearing came to the conclusion that the Order-in-Original was correct and coming to such a conclusion, he upheld the said order. Hence, this appeal. 3. Learned Chartered Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases in which the question of execution of bond cannot arise, when the inputs are used in the final products which are cleared for export or used in the intermediate products cleared for exports. It is the submission that the credit is availed on inputs used in the goods exported and used the credit for payment of duty on the final products including exports (for which rebate is claimed). It is the submission that as there is an accumulation of credit for the reason that the duty payable on the final products is 8% whereas inputs suffer 16%. As there is no other manner the adjustment is possible, the refund claim is made. 4. Learned SDR would submit that the provisions of Rule 5 are very clear. It is the submission that the proviso to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding 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, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service. and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification : Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty on the goods exported shall be given as a refund in form of cash to the manufacturer subject to the verification. In view of this, it is clearly established that the appellant is not eligible for the benefit of refund the Cenvat credit which remains unutilized as it is undisputed that the Cenvat credit which has been taken by the appellant on inputs has been utilized by him for the discharge of duty liability on the final products, which were cleared for export on payment of duty, on which rebate claims were made and they were sanctioned. 7. As regards the reliance placed by the learned Consultant on the decision of the Tribunal in the case of CCE, Rohtak v. Indo Dane Textile Industries as reported at 2007 (213) E.L.T. 117 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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