9911796707
TMI Blog2007 (10) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... has been claimed that following substantial question of law arises for determination of this Court :- "Whether, Refund of Cenvat Credit paid on inputs (AED T&T) used in the manufacture of final products exported under rebate claim under Rule 18 of Central Excise Rules, 2002 on payment of duly, is allowed under Rule 5 of Cenvat Credit Rules, 2002?" 2. Brief facts of the case may first be noticed. The assessee-respondent (hereinafter-'Assessee') is engaged in the manufacture of textile goods like made-ups and home furnishing articles. The assessee is duly registered with Central Excise Division, Panipat and had filed refund claim amounting to Rs. 9776/- under Rule of Cenvat Credit Rules, 2002 (for brevity, CC Rules, 2002) in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise for allowing the refund claim is that the use of the inputs was adequately proved. The finding of the adjudicating authority to that extent being erroneous was set aside. It was further held that the adjudicating authority has travelled beyond the scope of the show cause notice as there was no allegation that the refund under Rule 5 of the CC Rules, 2002 was not admissible on the ground that the assessee exported the goods by paying the Excise duty as against the requirement of the rule of exporting goods under a Bond. 5. On a further appeal filed by the Revenue, the Tribunal upheld the order of the Commissioner. According to the Tribunal, the basic requirement for refund under Rule 5 is that the inputs should be used in the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any goods. In other words definition clause of Excise Rules of 2002 and other provisions including Rules 18 and 19 which have arisen for consideration would apply even in respect of additional duties imposable under 1978 Act. 6. The Tribunal further concluded that in the instant case no export was made without payment of excise duty and, therefore, Rule 19 of the Central Excise Rules, 2002 was not applicable nor Rule 18 was attracted. The view of the Tribunal is discernible from para 8 of the order which reads as under :- "8. Under Rule 18 of the Central Excise Rules, 2002, the Central Government may, by notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have been claimed only in respect of the duty paid which was the specific Excise duty relatable to Rule 18 read with Section 3 of the Central Excise Act, 1944. No application for rebate of Additional Excise Duty which was paid on the inputs, was made under Rule 18 read with Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act. Therefore, an application for refund of such Additional Excise Duty by way of Cenvat credit in the account of the respondents could be made under Rule 5 of the Cenvat Credit Rules by these respondents. They were not debarred under the proviso to Rule 5 of the Cenvat Credit Rules, because they had not claimed rebate of the Additional Excise Duty under Rule 18, since no such claim could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The Tribunal has dealt in detail as to how the refund claim made by the assessee was available within the four corners of Rule 5 of the CC Rules, 2002. It has rightly held that the question of execution of Bond while making export was not raised by the Revenue at any stage and, therefore, that ground was not available as the assessee was not granted opportunity to meet such a plea. Moreover, on merit also it has been found as a fact that the assessee exported the goods by payment of excise duty under the Act for which rebate claim was made under Rule 18 and rebate is granted 'of duty paid' on the excisable goods contemplated by Rule 18 of CC Rules, 2002. The expression 'duty' as defined in the Act and the Excise Rules of 2002 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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