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2015 (9) TMI 41 - CESTAT MUMBAI

2015 (9) TMI 41 - CESTAT MUMBAI - TMI - Denial of refund claim - Refund of accumulated cenvat credit - Export of goods it has been alleged that documents have not been produced for verification but the fact is that all documents were produced to the Superintendent who verified the documents and submitted the report to the Assistant Commissioner. - Held that:- Decision in the case of assessee's own previous case followed - Decided in favour of assessee. - APPEAL Nos. E/89530, 89837, 89836, 88810/ .....

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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 fact is that all documents were produced to the Superintendent who verified the documents and submitted t .....

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te that in the said order, this Tribunal has observed as under:- 4. The brief facts of the case are that the appellants are engaged in the manufacture of pharmaceutical products and medicines. The applicants are exporting the goods manufactured. In some cases the appellants were clearing their final products under bond without payment of duty. In such cases the appellants filed refund claims under the provisions of Rule 5 of the Cenvat Credit Rules, 2004. The refund claims which are in dispute i .....

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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 .....

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riate duty and the appellants were claiming rebate of duty paid on such goods. 8. The appellants submitted that as per the provisions of Rule 5 of the Cenvat Credit Rules as well as Notification No.5/2006-CE(NT) dated 14.3.2006, the only obligation of the manufacturer is to show that the duty paid inputs are used in the manufacture of goods which were exported under bond and the manufacturer is unable to utilize the accumulated cenvat credit during that quarter/month. In the present case the app .....

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appellants should have cleared the final products on payment of duty as the appellants were having sufficient balance 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 .....

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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 export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, .....

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e Customs Tariff Act shall be utilised for payment of service tax on any output service. Explanation: For the purposes of this rule, the words 'output service which is exported' means the output service exported in accordance with the Export of Services Rules, 2005. Notification 5/2006-CE(NT) dated 14.3.2006 is issued 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 .....

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rects that refund of CENVAT credit shall be allowed in respect of : (a) input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking; (b) input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification. Appendix 1. The final product or the output service is exported in accordance with the .....

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ed Unit, the claim for such refund may be submitted for each calendar month. 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction,- (a) the factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of .....

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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 total turnover for the given period to which the claim relates i.e. Maximum refund # Total CENVAT credit taken on input services during the given period W export turnover w Total turnover Illustration: If total credit taken on input services for a quarter =  .....

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r means the sum total of the value of,- (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold, during the given period. 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1 .....

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