TMI Blog2015 (4) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under drawback scheme. If there was claim of drawback of service tax and such drawback has been paid, refund of cenvat credit of service tax shall not be allowed. It may be stated that when the drawback on service tax was not extended before 13.7.2006, claim thereof cannot be presumed. When there is no provision to disallow refund of the cenvat credit pertaining to service tax remaining unutilized and carried forward, the Hon'ble High Court of Bombay has held in the [2011 (2) TMI 503 - BOMBAY HIGH COURT] that in the absence of any distinction in Rule 5 prior to 13.2.2006, appellant cannot be disentitled to claim of refund thereof. Therefore entire carried forward credit remaining unutilized should be refunded. - Matter remanded ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods under drawback claim, no bond was executed. (d) Some of the cenvat credits were availed on the basis of debit note. 2. It is explained by learned counsel that it is a fact that although service tax paid was eligible for drawback claim, there was no law earlier for such claim. Drawback on such service tax was allowed with effect from 13.7.2006 and relevant rule was amended to allow drawback of service tax paid. When the rule was not permitting drawback on service tax, appellant has not at all claimed the drawback thereon. That can be established if the authority verify entire record relating to exports. The drawback claims for the above periods not being made, execution of any bond does not arise. Therefore, the allegation of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible. Secondly, appellant failed to produce claim of drawback. Thirdly there cannot be carry forward of cenvat credit. Fourthly, debit notes disentitled the appellant to the refund of cenvat credit. 6. Heard both sides and perused the records. 7. So far as the claim of drawback is concerned, there is no material evidence on record to appreciate that export of the appellant were supported by drawback claim. There was no enquiry done with the customs authority. Learned counsel in all fairness states that if any enquiry is done no material showing the export under drawback claim can be discovered by Revenue. Therefore, as an abundant caution, the Authority for his satisfaction may cause verification from the Customs authorities as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax, then execution of bond shall receive his consideration. 11. The allegation of Revenue that the drawback claim of service tax was made under debit notes does not appear to be sound when learned counsel says that in all fairness, it is left open to the adjudicating authority to examine the invoices relating to service tax paid to ascertain whether those were debit notes or real invoices. Considering the proposition of appellant fair, the authority if chooses to examine the invoices may specifically scrutunise the claim and record his finding in the de novo adjudication. Without any finding, he shall not pass blanket order stating that the invoices were not present and the claim was made through debit notes. 12. In view of ans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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