2009 (1) TMI 697

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..... under Chapter 86 of the Central Excise Tariff Act, 1985. They claimed Rs. 1,39,626/- and Rs. 68,155/- as refund of unutilised credit taken on the inputs used in the manufacture of exported goods for the quarter ending December 2006 and March 2007 respectively. The Original authority sanctioned the refund claims. The Revenue was aggrieved over the orders of the Original authority and filed the appeals to the Commissioner (Appeals) on the following grounds :- (i)      On scrutiny of the refund claim, it is observed that the assessee has not satisfied the condition laid down in Para 2(a) of the Notification No. 05/2006-C.E. (N.T.) dated 14-3-2006, issued under Rule 5 of the Cenvat Credit Rules, 2004. (ii)   .....

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..... ted the 25th March 1986 (G.S.R. 547(E), dated the 25th March 1986), or No. 83/94-Central Excise, dated the 11th April, 1994 (G.S.R. 375(E), dated the 11th April, 1994), or No. 84/94-Central Excise, dated the 11th April, 1994 (G.S.R. 376(E), dated the 11th April, 1994)." On going though the above clause, it was clear that the job work clearance under Notification Nos. 214/86, 83/94 or 84/94 are to be excluded for the purpose of determining the aggregate value of clearances of an unit for home consumption. Such being the case, it is highly illegal and unjust to give a finding that the job charges collected are to be taken into account for determining the total value of clearances of all products for the purpose of determining the eligibility .....

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..... f Section 11A of the Act and not by filing an appeal under Section 35E of the Act. The following decisions were relied on :- (a)     Best & Crompton Engineering Ltd. v. CCE, Chennai [2000 (121) E.L.T. 272 (Tri.-L.B.)]. (b)     Richardson & Cruddas [2000 (123) E.L.T. 918] (c)      Pricol Ltd. v. CCE, Coimbatore [2007 (123) E.L.T. 41 (Tri.-Chennai)] The above legal plea has not been appreciated by the Commissioner (Appeals). He has given only a finding that the appeal filed under Section 35E(2) of the Central Excise Act, 1944 is in conformity with the provisions of law and it is not in order. 5. The learned Jt. CDR reiterated the impugned order. 6. We have carefu .....

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