TMI Blog2012 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... of time - applicant failed to make out a case for total waiver of duty - applicants are directed to deposit 50% of the amount of demand - E/1470/2011-Mum - S/796/12/EB/C-II/WZB/2012 - Dated:- 26-4-2012 - S S Kang, Sahab Singh, JJ. For Appellant: Shri Aparna Hirandagi, Adv. For Respondent: Shri A K Prabhakar, Superintendent (AR) Per: S S Kang: Heard both sides. 2. The applicant filed this application for waiver of pre-deposit of duty of Rs.37,70,628/- with interest. 3. The brief facts of the case are that applicants filed a refund claim under Rule 5 of the Cenvat Credit Rules. In respect of accumulated Cenvat Credit of duty paid on inputs/input services used in or in relation to the manufacture of exported goods on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same as accumulated unutilized on account of export of goods. The applicant failed to show that the input services regarding which the credit of service tax is availed are used in or in relation to the manufacture of exported goods. 6. The contention of the applicant is that as per the provisions of Rule 5 of the CENVAT Credit Rules 2004, the applicants are entitled for refund of unutilized credit which is accumulated and the manufacturer is unable to utilize. In the present case, as the credit is rightly taken and Revenue is not disputing the eligibility of the credit. Applicants are exporting the manufactured goods. The applicant unable to utilize the same therefore the impugned order is not sustainable. The applicant also relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue relied upon the findings in the impugned order that the same has not been reflected in the books of accounts are receivable. The refund claim was filed in respect of the goods, which were exported during the period of January 2007 to March 2007. Therefore, it cannot be verified whether the input services regarding which the applicant is seeking refund is used in or in relation to the manufacture of exported goods. 8. We are considering the application for waiver of pre-deposit of dues as provided under Section 35F of the Central Excise Act. Admittedly, the credit for three years i.e. 2004 to 2006 was taken in February 2007. As per the provisions of Rule 4 of the Cenvat Credit Rules, the manufacturer can take credit immediately on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilised for payment of service tax on any output service. 9. Reading of the above provisions shows that where any input or input services is used in the manufacture of the final product which is cleared for export under bond or letter of undertaking, the manufacturer is unable to utilize the same the manufacturer is entitled for refund of such amount subject to such safeguards conditions and limitations as may be specified. The applicants relied upon para 3.3 of the Board Circular which provides as under:- As regards the quarterly filing of refund claims and its applicability, since no bar is provided in the notification, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the earlier quarter in the quarter in which the goods exported. The circular is in respect of credit taken in the quarter in which no export is made the Board Circular does not talk about the credit which was related to the previous years and taken subsequently. Further, we find that the Hon'ble High Court of Karnataka in the case of Shell India Markets Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore reported in 2012 (278) E.L.T. 50 (Kar.) while interpreting the provisions of Rule 5 of the Cenvat Credit Rules, 2004 held that it not only necessary to verify that a particular kind of input service is consumed for providing a particular kind of output service but it is necessary to ensure that the eligible service received unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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