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TMI Blog2011 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... exports under bond, under Rule 5 of the Cenvat Credit Rules, 2004, in respect of which the jurisdictional Deputy Commissioner issued orders in original dated 26-10-2005, 21-10-2005 and 28-9-2005 by which he rejected the refund claims of Rs. 77,325/- Rs. 14,11,577/- and Rs. 8,43,303/- respectively on the ground that the same are of the cenvat credit accumulated on account of exports under Quality based advance licence scheme and sanctioning these refunds would amount to double benefit to the respondent. On appeals being filed, the CCE (Appeals) vide order-in-appeal No. 877-879 (HKS)CE/JPR-II/05 dated 14-12-2005 allowed the appeals of the respondent. Against this order of the CCE (Appeals), these three appeals have been filed by the Revenue and in respect of these appeals, the respondent have filed the Memorandums of cross objection. 2. Heard both the sides. 2.1 Shri Sunil Kumar, the learned DR, assailing the impugned order by reiterating the grounds of appeal in the Revenue's appeals, emphasised that- (a) exports under advance licence scheme were made of the goods manufactured out of indigenous duty paid staple fibres, in respect of which cenvat credit had been tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exports under bond, if the exports have been made under Advance Licence Scheme, that in this regard, he relies upon Tribunal's decisions in cases of Commissioner of Central Excise, Jaipur-II v. Bhilwara Spinners Ltd. reported in 2008 (226) E.L.T. 222 (Tribunal-Delhi) and Ispat Industries Ltd. v. CCE, Nagpur reported in 2006 (195) E.L.T. 37 (Tribunal-Mumbai), that under advance licence scheme, an exporter is entitled to first import the raw material duty free, use it for manufacture of finished goods for export and export the goods or alternatively, he can first export the goods made out of duty paid indigenous inputs and thereafter import the raw material duty free against advance licence issued, for next cycle of manufacture and export and in such a situation, cash refund of accumulated cenvat credit under Rule 5 would not amount to double benefit and that in view of this, there is no merit in the Revenue's appeal. 3. We have carefully considered the submissions from both the sides and perused the records. 4. The period of dispute in this case is from April, 2005 to June, 2005. The respondents during this period had manufactured Spun Polyester/Acrylic/Viscose Yarn a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit. - Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilised by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final products 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 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 allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty. [Provided further that no credit of the additional duty leviable under sub-section (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts without availing the facility under Rule 18 or Rule 19(2) of the Central Excise Rules, 2002 and of these conditions are breached, as according to Department, facility of input duty rebate under Rule 18 of Central Excise Rules, 2002 is equivalent to cash refund of accumulated cenvat credit under Rule 5 of Cenvat Credit Rules, 2004, then it is the benefit of the duty exemption under these notifications in respect of the goods imported against the advance licence, which has to be denied, and not the benefit of cash refund under Rule 5 of the Cenvat Credit Rules, 2004 in respect of the exports. 7. In the case of Videocon International v. Commissioner of Customs, Mumbai (supra) cited by the Revenue the exports had been made under value based Advance Licence Scheme of exemption notification No. 203/92-Cus., dated 19-5-1992 where the benefit of duty exemption under the notification was subject to the condition that the export obligations should have been discharged by exporting the goods manufactured in India in respect of which no input duty credit has been availed and in respect of the exports under value based Advance Licence Scheme, the appellant, as a part of Amnesty Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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