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TMI Blog2014 (3) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... turers also and exports the goods under ARE-1 filed by them. c) Clearance without payment of duty under procurement certificates as per Removal of Goods under Concessional Rate of Duty Rules, 2001 to the manufacturers who do further manufacturing process on the goods and export the goods under ARE-1. 4. The appellant had filed the refund claims for Cenvat credit accumulated by them on account of Cenvat credit on inputs used in the manufacture of goods exported under the three methods as above. Five show cause notices were issued on the following grounds: (i) that the appellants had not proved that they had not availed draw-back claim or rebate of duty on the exports. (ii) that the appellant had not furnished any proof of export documents such as shipping bills, Bill of export etc. as evidence. (iii) that the Appellant had not shown that the credit could not be utilized for payment of duty on goods cleared to DTA; (iv) that the Appellant had not filed the calculation formula for the inputs consumed in the goods exported for arriving at the quantum of refund. 5. On adjudication, refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not proved beyond doubt that the goods cleared by the appellants in their ARE3s have been duty exported. 7.7. Regarding the contention of the appellants that the lower authority ought to have verified the fact of actual exports and then should have proceeded to deny the refund claim if there was misrepresentation of facts, I am of the opinion that the lower authority (who is also the jurisdictional officer of the appellants) is not required to do such verification because refund claims are received from different assessees and Annexure I forms are also received from different formations across the country and every time checking the export details with every formation is not warranted and also it is not practical to verify the export details of each merchant exporter spread over the country before sanction of refund claim. Moreover, no such verification procedure is prescribed under Central Excise Law because the Government's intention is not to consider such cases for refund under rule 5 of the CENVAT Credit Rules, 2002. Hence, the lower authority had no option other than to deny refund in such cases and he had to confine his action on the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. In the result, the impugned order gets set aside and the appeals are allowed." 7. In pursuance of the above decision of the Tribunal, the adjudicating authority took up the refund claims for further process and the refund claims were processed afresh. The adjudication order in file No. V/52/18/94/2007-Refunds 17.04.2007 has been passed in such a proceeding. In this order, an amount of Rs.3,39,672/- was sanctioned and an amount of Rs. 5,21,485/- was rejected. The amount was restricted by calculating the amount of inputs going into the goods exported and also for the reason that the appellant was following up the refund amount for lower amounts. It appears that the appellant has been able to utilize part of the Cenvat credit on clearance of goods in between. Aggrieved by the order, the appellant filed appeal before the Commissioner (A). The Commissioner (A) rejected the appeal on a fresh ground that the appellant has claimed refund on excise duty paid in the capacity as a dealer and not as a manufacturer. It is held by the Commissioner (A) that Rule 5 of Cenvat Credit Rules, 2002 was not applicable to the manufacturer and hence the appellant was not eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing ficion created for payment of duty cannot be applied for claiming refund. He relies on the decision of Gujarat High Court in the case of Essar Steel Ltd Vs. UOI - 2010 (249) ELT 3 Guj . 11. Considered the submissions on both sides. I find that in the first round of litigation, the Commissioner (A) had allowed refund claims for all goods cleared from the factory of the appellant for export and rejected the refund claims only in respect of the goods which were cleared from the premises of the merchant exporters or other manufacturers. Against this, the appellant came in appeal before the Tribunal and that appeal was allowed without any qualification which would imply that the entire refund which was originally asked forgot sanctioned consequent to the order of the Commissioner (A) and further orders of the Tribunal. So a second round of examination of eligibility for refunds was prima facie unwarranted. Further, it is seen that in the second round of proceedings of refund claims, the adjudicating authority as well as the first appellate authority have relied on new grounds for rejecting the refund claims without even putting the appellant on notice. Therefore, on the basis of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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