TMI Blog2010 (11) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the refund claim to the extent of ₹ 67238 by the lower authority is thus liable to be set aside - Decided in favour of assessee. - NGP/255/2010 - SR/403/NGP/2010 - Dated:- 15-11-2010 - Shri S. Ramesh, J. Shri K.S. Wankhede, Sr. Manager Accounts, for the Assessee. [Order]. This appeal has been filed by M/s. Benzo Chem. Industries Pvt. Ltd. [100% EOU], B-24 25, MIDC Area, Dasarkhed, Melkapur, Buldhana, Maharashtra 443101, (herein after referred to as the Appellant ) against Order-in-Original No. 13/REFUND/AMT/10-11 dated 7-4-2010 passed by the Assistant Commissioner. Central Excise, Division-Amravati, (hereinafter referred to as lower authority ) wherein he has sanctioned refund of ₹ 1312752 under Rule 5 of the Cenvat Credit Rules, 2004 read with Section 11-B of the Central Excise Act, 1944 and balance refund claim of ₹ 174745 was rejected. 2. The Appellant are manufacturer of Chemical Product viz. 2-COUMARANONE 30% IN ACETIC ANHYDRIDH 70% falling under Chapter Heading No. 29 of Schedule to the Central Excise Tariff Act, 1985 and availing Cenvat Credit facility under Rule 3 of Cenvat Credit Rules, 2004. The appellant filed an refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und the part denial of refund claim needs to be set aside. Without prejudice to above submission, final goods having exported from Customs station viz. JNPT sea port is not in dispute nor there exist any disputes on documentation part. Only dispute seems to that Cenvat credit refund on inputs would be restricted to actual inputs used in final goods exported two input Excise invoice did not mention Plot No. B-24 and 25 in the factory address for denying in the refund claim. As regards rejecting the refund claim to the Extent of ₹ 103240 plus ₹ 67238 as Cenvat credit of inputs actually not used in exported final goods. The appellants submit that CENVAT Credit Rules, 2004 permit taking of credit of inputs which are used for providing output goods. In order to zero-rate the exports. Rule 5 of Cenvat Credit Rules, 2004 provides that such accumulated credit can be refunded to the exporter subject to stipulated conditions, Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 provides the conditions, safeguards and limitations for obtaining refund of such credit. The said Notification nowhere prescribes for calculating the proportionate Cenvat credit on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally, the proportional refund to such extent can be demanded from him. In view of above formula applied by the adjudicating authority was beyond the scope of the Notification No. 5/2006-CX. (N.T.) as clarified in CBEC circular above. He should have simply allowed 100% refund of Cenvat credit including ₹ 103240 plus ₹ 67238 which he wrongly allowed pertaining to input credit of inputs not having used in exported final goods. As regards denial of refund claim of ₹ 67238 on the input Excise invoices not having Plot No. in the factory address mentioned. Period of dispute May, 2009. Rule 9(1)(a) of the Cenvat Credit Rules, 2004 prescribes the input Excise Invoice as one of the eligible Cenvatable document. The appellants submits that the Assistant/Deputy Commissioner of Central Excise having jurisdiction over the factory of manufacturer intending to lake credit is satisfied that duty that the goods covered by the said document have been received and accounted for in the books of the account of the receiver. Such Assistant commissioner has a power to allow the credit by recording the reasons for allowing the credit in each case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for unit-II in the input invoice issued by M/s. Grasim Industries Ltd. should not be reason to deny the refund claim. They submit that merely non-mentioning the full address of factory should not come in way of, allowing us otherwise eligible CENVAT credit. It is at the most rectifiable mistake which can be condoned. They wish to rely of following case laws. (a) CCEx v. M/s. DNH Spinners - 2009 - TIOL 1216 CESTAT-AHM = 2009 (244) E.L.T. 65 (T) = 2009 (16) S.T.R. 418 (T) (b) Track Equipment Engineering Co. - 2008 (229) E.L.T. 476 (Comm. Appeals) (c) CCEX v. Myron Electricals Pvt. Ltd. - 2006 TIOL 439 HC P H-CX = 2007 (207) E.L.T. 664 (P H) = 2008 (11) S.T.R. 85 (P H) (d) Crop Healthcare Product Ltd. v. Col CCEx - 1998 (102) E.L.T. 376 (Tri.) They attach herewith copies on input excise invoices, extracts if inward gate register, GRR issue slips for satisfying the conditions mentioned above as Annexure-2, thus Cenvat credit be allowed to us by condoning this lapse of the part of M/s. Grasim Industries Ltd. is not mentioning the plot No. B-24 25 during the beginning of the factory. The impugned order does not dispute input as having received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I wish to take up the case on merits too in the interest of justice, the appellant has not disputed the denial of credit/refund of Rs. 4267/- for the excess credit taken by them. Hence, no discussion is needed on this issue. The rejection of refund on the other two grounds is now taken up for decision. 8.1 Against the rejection of Rs. 103240/-, the appellants has contended that CENVAT Credit Rules, 2004 permit taking of credit of inputs which are used for providing output goods. In order to zero-rate the exports, Rule 5 of CENVAT Credit Rules, 2004 provides that such accumulated credit can be refunded to the exporter subject to stipulated conditions. Notification No. 5/2006-C.E. (N.T.) dated 14-3-2006 provides the conditions, safeguards and limitations for obtaining refund of such credit. The said notification nowhere prescribes for calculating the proportionate Cenvat credit on the inputs used in making exported final goods, as wrongly applied by the adjudicating authority. 8.2 In the instant case. I find that the lower authority has considered the lowest rate for ascertaining the rate to determine the assessable value of the inputs consumed by the Appellant in manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible and liable to be reversed. The facts on record reveal that two units of the very same company having identical name style are located on different plots of land. First unit is M/s. Benzo Chem Industries P. Ltd. (100% EOU) (Appellant in present case) situated at plot No. B-24 25 of MIDC Area, Dasarkhed. Malkapur, Distt Buldana and the other unit is M/s. Benzo Chem Industries Ltd. situated at Plot No. B-26 27 of MIDC Area, Dasarkhed, Malkapur, Distt. Buldana. 9.2 The refund was denied to the appellant by lower authority on the ground that the duty paying documents do not mention the Plot No. B-24 25, but merely mention - M/s. Benzo Chem Industries P. Ltd. Unit-II Dasarkhed, Malkapur, Distt. Buldana. I find that the goods in captioned invoice are reportedly received and used by the Appellant s unit at plot No B-24 24. Thus mere non-mentioning of Plot No B-24 25 has been taken as the basis for disallowance of Cenvat Credit and further denial of the refund claim. The Appellant has produced the copies of input excise invoices, extracts of Inward gate register, GRR Issue slips for satisfying the conditions of actual use of captioned inputs in manufacture and export ..... 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