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TMI Blog2011 (4) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts cleared to the Domestic Tariff Area. After 9.7.04 the Appellant is not able to use such credit and hence refund was claimed. There is also a case made out that Rs.1,80,853/- out of the total amount of Rs.2,61,420/- claimed as refund, was credited to the Cenvat credit Account by an order of the Department after abolition of ADE (T&TA). 2. The Appellant submits that he was required to reverse an amount of Rs.1,80,853/- during the year 1998 as a result of order-in-original No. 60-62-CEX/DC/98 dated 2.3.98. The Appellant had contested this order in original and succeeded. By decision of the CESTAT in Appeal No. 473-75/04 dated 5.7.2004, the matter was remanded to the Joint Commissioner who decided the case in favour of the Appellant vide order-in-original No. 97/JC/CEX-05 dated 23.12.2005 and the amount recovered from them during the initial proceedings was refunded. The amount on account of ADE (T&TA) was refunded by crediting the amount in their Cenvat Credit Account. Since ADE (T&TA) was abolished by this time there was no chance of utilizing the amount so credited. So they applied for cash refund of this amount from ADE (T&TA). 3. The Assistant Commissioner ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im in terms of Board s clarification F.No. 267/11/2003-Cx-8 dated 22.3.2007. 6. The Commissioner (Appeals) rejected the Appeal on altogether new ground that the order-in-original dated 18.9.2006 granting refund by credit into Cenvat account was not challenged and hence has reached finality and hence cash refund cannot be claimed. 7. The CBEC has clarified vide F. No. 267/11/2003-CX.8 dated 22.3.2007 that the amount lying unutilised in the Cenvat account for ADE (T&TA) can be refunded in cash as per the provisions of Rule 5 of Cenvat Credit Rules, 2002. 8. Heard arguments on both sides. 9. I am not able to agree with the reasons given by Commissioner (Appeal) for rejection of the Appeal for two reasons. In the first place the Appellant was not given an opportunity to rebut this point. Secondly for claiming refund of Cenvat Credit accumulated due to export there are a few conditions to be satisfied. The question whether these conditions were satisfied could not have been examined in the adjudication proceedings which resulted in the issue of order-in-original No. 97/JC/CEX-05 dated 23.12.2005. Further I note that there is no specific time frame stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification of the Government of India in the Ministry of Finance (Department of Revenue), No.11/2002 - Central Excise (NT), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150(E), dated 1st March, 2002, the Central Government hereby directs that refund of CENVAT credit shall be allowed in respect of : (a) input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking; (b) input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification. Appendix 1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Services Rules, 2005, as the case may be. 2. The claims for such refund are submitted not more than once for any quarter in a calendar year Provided that where,- (a) the average export clearances of final products or the output services in value terms is fifty percent or more of the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd non excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold during the given period. 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994,in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944(1 of 1944). 7. The refund of excise duty or service tax is allowed by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. 11. In the proceedings before the lower authorities and in the Appeal filed before this Tribunal there is no attempt to take a clear stand on what is the given period to which the claim relates as mentioned in condition 5 of the Appendix to Notification 05/2006-CE(NT). The whole dispute in this appeal is on account of this fact. 12 In this particular case, the major part of claim, ie Rs. Rs.1,80,85 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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