9911796707
TMI Blog2012 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... of exported goods on the ground that the applicants were unable to utilize the same. The adjudicating authority allowed the refund and the applicant received the amount of refund. Revenue filed the appeal before the Commissioner (Appeals) and Commissioner (Appeals) set aside the adjudication order and directed the applicants to deposit the erroneous sanctioned refund along with interest. 4. The brief facts of the case are that applicants are engaged in the manufacture of socks classifiable under heading 61 of the Central Excise Tariff, and the applicants had availed credit in respect of the duty paid/service tax paid on the inputs/input services used in or in relation to the manufacture of goods which were exported under bond. On 27.2.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant also relied upon the provisions of Rule 4 of the Cenvat Credit Rules to submit that there is no bar for taking credit subsequent to the receipt of the inputs or input services. Applicant heavily relied upon the Board Circular No. 121/01/2010-ST dt. 19.1.10 to submit that the refund of unutilized credit can be made in respect of the credit relatable to the earlier quarter under which no export has been made. Therefore, there is no requirement of nexus of the input services or inputs used in or in relation to the manufacture of exported goods. Applicant relied upon the following Single Member decision of the Tribunal (i) CCE Vs. Chamundi Textiles 2010 (258) ELT 141 Tribunal (ii) CCE Vs. Chamundi Textiles 2011 (270) ELT 531 (T). The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately on receipt of the goods. The applicant filed a refund claim as per the provisions of Rule 5 of Cenvat Credit Rules for ready reference the provisions of Rule 5 are reproduced below:- "RULE 5 Refund of CENVAT credit . -Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product 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 utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be any objection in allowing refund of credit of the past period in subsequent quarters. It is possible that during certain quarters, there may not be any exports and therefore the exporter does not file any claim. However, he receives inputs/input services during this period. To illustrate, an exporter may avail of Rs.1 crore as input credit in the April-June quarter. However, no export may be made in this quarter, so no refund is claimed. The input credit is thus carried over to the July-September quarter, when exports of Rs.50 lakh and domestic clearances of Rs.25 lakh are made. The exporter should be permitted a refund of Rs. 66 lakh (as his export turnover is 66% of the total turnover in the quarter) from the Cenvat credit of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s invoices have actually gone into consumption for providing the exported output service in question and not utilized for other purposes. We find that the admitted facts of the present case as the service tax for three years were taken by making one entry that after a lapse of time. In view of the above decision of Hon'ble High Court, applicant failed to make out a case for total waiver of duty. Keeping in view of the facts and circumstances of the case, and the interest of revenue as provided under Section 35F of the Central Excise Act, the applicants are directed to deposit 50% of the amount of demand within a period of eight weeks. On deposit of the above mentioned amount, the pre-deposit of the remaining dues are waived and recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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