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TMI Blog2009 (12) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2002. Since the appellant had taken input duty credit in respect of the duty paid inputs used in the manufacture of the yarn which had been exported and since the accumulated credit could not be utilized for payment of duty on clearance for home consumption, the Appellant, as per the provisions of Rule 5 of the Cenvat Credit Rules, 2002, applied for cash refund of unutilised Cenvat credit of Rs. 39,87,276/- which was sanctioned by the Assistant Commissioner vide order-in-original No. 134/08/R-CE (Ref), dated 23-6-08. The Department filed a review appeal to CCE (Appeals) against the Assistant Commissioner's order which was allowed by the CCE (Appeals) vide order-in-Appeal No. 216 (DK) CE/JPR-II/2009, dated 20-3-09 and the Assistant Commissioner's order dated 23-6-08 sanctioning cash refund of the Cenvat credit accumulated due to exports, was set aside. It is against this order that the present appeal along with stay application has been filed. 2. Heard both the sides. 2.1 Shri K.K. Anand, Advocate, the learned Counsel for the Appellant made the following submissions : (1) The refund order has been set aside by CCE (Appeals) on the grounds that - (a) since the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not received in time, they had enclosed self certified copies of shipping bills along with the refund claim and subsequently when the copies of shipping bills duly certified by Customs officers were received, the same had been enclosed with the cross objection. Therefore the CCE (Appeals)'s finding that customs certified copies of shipping bills were not produced, is incorrect and just because these copies of shipping bills could not be submitted with the refund claim, the same cannot be rejected. In fact paras 13.1 to 13.7 of Chapter 7 Part II of CBEC's Central Excise Manual, 2005 mentions self attested copies of shipping bills as acceptable documents. (6) As per the Board's Circular No. 220/54/96-CX, dated 4-6-96 cash refund of unutilized Cenvat credit is an incentive given to manufacturers and exporters and non grant of the same effects the competitiveness of India Industry in international market. In view of this, it is highly improper to set aside the refund order only for procedural irregularity. 2.1.1 Shri Anand, therefore, pleaded that the Appellant have a strong prima facie case and pleaded for waiver from the requirement of pre-deposit of the alleged erroneous ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial used in the manufacture of such goods, is the date on which the ship/aircraft or while the goods are loaded, leaves India. (2) The copies of shipping bills duly certified by the Customs Officers were not enclosed with the refund claim. Though the Appellant submitted that they have received the Customs certified copies of shipping bills, the relevant rule in this regard is very clear that the same have to be submitted along with the refund claim. Therefore the refund is not admissible. 4. The cash refund of Cenvat credit accumulated due to exports, under Rule 5 of the Cenvat Credit Rules, 2004, is governed by the procedure and conditions prescribed in this regard in Notification No. 5/2006-C.E. (N.T.), dated 14-3-06, the relevant portion of which is reproduced below :- "Refund of Cenvat credit — Procedure In exercise of the powers conferred by Rule 5 of the Cenvat Credit Rules, 2004 (hereinafter referred to as the 'said rules'), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 11/2002-Central Excise (N.T.), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Maximum refund £ Total Cenvat credit taken on input services during the given period x export turnover ÷ Total turnover. Illustration : If total credit taken on input services for a quarter = Rs. 100 Export turnover during the quarter = Rs. 250 Total turnover during the quarter = Rs. 500 Refund of input service credit under Rule 5 of the Cenvat credit Rules, during the quarter £ 100*250/500 i.e. Rs. 50. Explanation : For the purposes of condition no. 5, - 1. "Export turnover" shall mean the sum total of the value of final products and output services exported during the given period in respect of which the exporter claims the facility of refund under this rule. 2. "Total turnover" means the sum total of the value of, - (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non excisable goods cleared, including the value of goods exported; (c) The value of bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no allegation that the condition 2,4,5 or 6 are not satisfied. Since as per the provisions of the notification, the refund of unutilised Cenvat credit is admissible in respect of - inputs or input services used in manufacture of final products, "which are cleared for export under bond or letter of undertaking", we are, prima facie, of the view that when refund claim has been filed in respect of the 70 consignments cleared for export during July, 2007 -September, 2007, within the prescribed limitation period, and by the time the refund claim was filed, the goods had already been exported out of India, refund in respect of 11 consignments cannot be denied just because the same were physically exported in October 2007. 6. Another ground for denial of refund is that the copies of shipping bills duly certified by the customs officers regarding export of the goods were not enclosed along with the refund application. While it is true that along with the refund application, only self certified copies of shipping bills were enclosed, but as mentioned in the impugned order-in-appeal, the customs certified copies were produced subsequently. We are prima facie of the view that non- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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