TMI Blog2007 (10) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ods therefore, the Cenvat Credit of Additional Excise Duty (T&T) paid by the assessee on inputs remained unutilized. The rebate claim made by the assessee under the Excise Rules, 2002 was granted to them. Thereafter, the assessee filed refund claim of Additional Excise Duty (T&T) paid on inputs under Rule 5 of the CC Rules, 2002 – Held that:- refund allowed. - 81 of 2007 - - - Dated:- 12-10-2007 - M.M. Kumar and Ajay Kumar Mittal, JJ. REPRESENTED BY : Shri Sanjeev Kaushik, Advocate, for the Appellant. [Order per : M.M. Kumar, J.]. The Commissioner of Central Excise, Rohtak has filed the instant appeal under Section 35-G of the Central Excise Act, 1944 (for brevity, the Act) challenging the order dated 9-2-2007 [2007 (213) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Duty (T T) paid on inputs under Rule 5 of the CC Rules, 2002. 3. The Assistant Commissioner, Central Excise, rejected the claim by passing the order-in-original dated 2-3-2006, (Annexure A-1), mainly on two grounds; (a) that the refund claim made under Rule 5 of CC Rules, 2002 was not maintainable as the export was made on payment of duty whereas Rule 5 of the CC Rules envisages for refund of Cenvat Credit in case the export was made under Bond and (b) that the respondent did not provide the details of inputs consumed in the export goods nor it followed the conditions of notification dated 1-3-2002 issued under Rule 5 of CC Rules, 2002. 4. The assessee challenged the order-in-original before the Commissioner of Appeals, who allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under the rebate claims, the assessee was not entitled to any refund under Rule 5 of the CC Rules, 2002. The Tribunal clarified that the provisions of the Act were to apply to CC Rules, 2002 and the Additional Duty of Excise (Textiles and Textile Articles) Act, 1978. The word duty in Rule 5 of CC Rules, 2002 would necessarily mean the duty payable under Section 3 of the Act. The Additional Excise Duty in respect of textiles and textile articles is levied under the provisions of Section 3 of Additional Duty of Excise (Textiles and Textile Articles) Act, 1978 (for brevity, 1978 Act). Under sub-section (3) of Section 3 of 1978 Act, it is provided that the provisions of the Act and the Rules framed thereunder including those relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19, which provided export under bond of the goods which were exported from the factory without payment of duty. The exporter was required to furnish a general bond in the form specified without payment of excise duty. In the present case, admittedly, there were no exports without payment of excise and, therefore, Rule 19 had no applicability. Thus, no question had arisen of execution of bond as required by the said notification issued under Rule 19(3) by these respondents. They admittedly exported the goods by payment of excise duty which was done by adjusting the basic Excise duty which was payable under the Central Excise Act, 1944, for which the rebate claim was made under Rule 18. Rebate is granted of duty paid on the excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. (emphasis added) 7. On the basis of the aforementioned finding, the Tribunal concluded that the inputs were utilized in the final products which were exported on payment of duty. Therefore, it did not debar the respondents from claiming refund of Additional Excise Duty under Rule 5 of the CC Rules, 2002 because the Cenvat Credit relating to the duty under Rule 5 could not be adjusted at any stage. The Tribunal also concluded that in any event there was no allegation in the show cause notice against the respondent in respect of exports without Bond and, therefore, the Commissioner (Appeals) was found to be justified in rejecting that ground canvassed by the Revenue. 8. We have heard the learned counsel at a considerable lengt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the later judgment of Hon ble the Supreme Court in the case of Collector of Central Excise, Jaipur v. J.K. Synthetics, (2000) 10 SCC 393 = 2000 (120) E.L.T. 54 (S.C.), on the ground that it failed to consider Section 3 of the Customs Tariff Act, 1975. Thus, we find that no question of law much less substantial question of law would arise for our determination. The claimed question is dependent on the findings as to how the refund claim made by the respondent was relatable to the Additional Excise Duty which could not be utilized in clearance of the final products because final product was not made subject to such additional duty and that the inputs were used in the final product. Therefore, there is no merit in the appeal and the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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