TMI Blog2011 (1) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer subject to the conditions that proper documents showing the payment of duty are available - in this case also the action of the appellants in taking credit on 9-10-2009 has to be upheld Since the appellant is availing full exemption and not even registered and the exempted goods were not exported under bond, refund has been denied - In fact, it is the appellants who have suffered the loss because of the delay in obtaining registration and not exporting the goods under bond, even though appellant had taken a decision to avail cenvat credit and indicated the same at the time of removal. It is strange to note that Central Excise Officers have certified the availment of cenvat credit even though the appellant was not registered and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atic Oil Packing materials used in the manufacture of Texturised Polyester Filament Yarn exported during the period 1-11-2008 to 7-10-2009. The refund claim of Cenvat Credit on the inputs used in the manufacture of export goods was filed as per provisions of Notification No. 5/2006 Central Excise (N.T.) dated 4-3-2006 and Rule 5 of Cenvat Credit Rules, 2004 read with Section 11B of Central Excise Act, 1944. The Assistant Commissioner after due process of law, vide his OIO rejected the refund claim mainly on the ground that refund under Rule 6 of Cenvat Credit Rules, 2004 is permissible only if the dutiable goods are exported under bond or LUT and since the appellant was availing full exemption and was not even registered with Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004 are not attracted in respect of the exported goods. There is no dispute about the fact that Texturised Polyester Filament Yarn has been exported and duty has been paid on the inputs used in the manufacture. The decision of the adjudicating authority that appellant was eligible only for transitional cenvat credit on the inputs in stock as on 9-10-2009 i.e. the date of issue of registration certificate, is also not correct. 3. On the other hand learned DR submitted that the Commissioner (Appeals) in the impugned order has considered all these submissions and has rightly held that appellant is not eligible for the refund. 4. We have considered the submissions made by both the sides. In this case the registration certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was allowed by the Tribunal. The Tribunal took a view that there is no provision in the rules that credit was not available to unregistered manufacturers. Manufacturers exempted from the registration do not cease to be a manufacturer of excisable goods. This case squarely covers the issue in this case also. Therefore, in respect of the goods manufactured during the period when the appellant was not registered, credit can be taken subsequently also. This view is further supported by the consistent stand taken by various judicial forums in the case of clandestine removals, even if the duty is paid subsequently, cenvat credit on inputs used will be available to the assessee/manufacturer subject to the conditions that proper documents showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the decision in the case of Termax Pvt. Limited - 1992 (61) E.L.T. 352 to come to the conclusion that benefit of exemption or concession should not be denied whenever intended use of material is established by other evidences and just because of procedural violation, that by itself will not disentitle them from taking the benefit. In this case it is not the case of the department that goods have not been exported or appellant did not have the relevant documents for availing credit or inputs have not been used for the manufacture of exported goods. We also take note of the fact that in the case of Tuffropes Private Limited v. CCE, Vapi - 2009 (233) E.L.T. 544 (Tri.-Ahmd.), this Tribunal had taken a view that exempted goods can also be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat credit. Purpose of this note in the examination report is to ensure that the Central Excise officers verify the input/output ratio, ensure that inputs have been received under proper documents and utilization records have been maintained properly. Therefore, we can definitely say that there is contributory mistake on the part of Central Excise officers which has led to this situation. 9. Therefore, considering the precedent judicial decisions, the legal provisions as well as facts of the case, the impugned order rejecting the claim cannot be sustained and accordingly, the same is set-aside and appeal is allowed. 10. Further, the matter is remanded to the original adjudicating authority for the purpose of verification of documentary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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