2010 (8) TMI 801

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..... Respondent. ORDER The appellant has filed this appeal against the disallowing of the Cenvat credit of Rs. 4,59,214/-. 2. The facts of the case are that appellant had cleared a consignment of their final product for export under a claim of rebate but the goods could not be exported as the truck which was carrying the goods met an accident in transit the goods were brought back to the factory. A .....

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..... l Excise Rules, 2002 the appellant was entitled to take the credit suo motu when the goods were received in the factory but for abundant caution, the appellant informed to the Department and file the refund claim. Accordingly, the same was sanctioned by the Assistant Commissioner. He submitted that there is not dispute that the appellant can take the credit on the said goods of their own but in th .....

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..... d of following the procedure laid down under Rule 16 of the Central Excise Rules, 2002 where the appellant can take suo motu credit on the said goods. Hence, the appellant is not entitled to the refund of the same. Further, he submitted that the Hon'ble Karnataka High court in the case of Dynamatic Technologies Ltd. v. Union of India reported in 2005 (186) E.L.T. 277 (Kar.) have held that show cau .....

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..... e Department and after due verification by the Range Superintendent, the Assistant commissioner allowed them to take the refund of the goods cleared for export but could not have been exported and brought back to the factory. It is not in dispute that the appellant is not entitled for such a credit in their account. Accordingly, the way adopted by the appellant is only abounded caution and the Ass .....

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..... that case the refund was rejected by the original adjudicating authority and was allowed by the Commissioner (Appeals) but in this case the refund was sanctioned by the original adjudicating authority and the same reviewed under Section 35E ibid which is not permissible in the law. Accordingly, the refund claim sanctioned by the Assistant Commissioner is correct and the impugned order rejecting th .....

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