TMI Blog2015 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate For the Respondent : Shri V.K. Agrawal, Additional Commissioner (AR) ORDER Per: P.K. Jain Heard both sides. 2. We find that in all the four cases, the issue involved is common and is also covered in appellants own case for the earlier period, vide order No. A/767-770/13/EB/C-II dated 5.7.2013. 3. The learned AR submits that in the present cases in some appeals, the appellant had not produced all the documents for verification and in one case did not appear for personal hearing or replied to the show cause notice. 4. The learned counsel for the appellant, on the other hand, submits that though in the show cause notice it has been alleged that documents have not been produced for verification but the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilize the accumulated cenvat credit for payment of duty on home clearances as well as for exports and also that the appellants failed to segregate the accumulated credit on account of the goods exported on payment of central excise duty and those exports without payment of duty as no such accounts are maintained by the appellants. 6. The contention of the appellants is that the appellants are manufacturing the pharmaceutical products and maintaining the records batch-wise and this evidence was produced before the adjudicating authority. As one-to-one correlation in respect of the duty paid inputs and the use in the manufacture of the goods which were exported without payment of duty. The batch numbers were specifically mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in the cenvat account. It is submitted that there is no situation or grounds forthcoming, which prevented the appellants from utilizing the accumulated cenvat credit for their exports on payment of duty as they have done in many cases instead of partial export without payment of duty hence the refund claims are rightly rejected. 10. We find that the appellants filed refund claims as per the provisions of Rule 5 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in exercise of powers conferred under Rule, which provides procedure and conditions for refund claim. For ready reference, the provisions of the Notification are reproduced below:- Notification No. 05/2006 - Central Excise (N.T.) G.S.R. (E) In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.11/2002 - Central Excise (NT), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150(E), dated 1st March, 2002, the Central Government hereby directs that refund of CENVAT credit shall be allowed in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule 3 of the said rules against goods exported during the quarter or month to which the claim relates (hereinafter referred to as the given period). 5. The refund of unutilised input service credit will be restricted to the extent of the ratio of export turnover to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in section 11B of the Central Excise Act, 1944(1 of 1944). 7. The refund of excise duty or service tax is allowed by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. 11. In the present case the appellants were filing refund claims as per the provisions of Rule 5 of the Cenvat Credit Rules. The only objection of the Revenue is that in some cases the appellants were clearing the final products on payment of duty, which were exported, and claiming rebate in respect of such duty paid hence it is not a case where the appellants were unable to utilize the accumulated cenvat credit. 12. We find that the provisions of Rule 18 of the Central Excise Rules, 2002 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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