TMI Blog2006 (3) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 5 relating to refund of Modvat credit accumulated in the records on account of their non utilisation for the exported goods is a beneficiary piece of legislation, the refund arising on account of the same cannot be denied being a substantive right of the citizen. The wording of Rule 5 read with Rule 3 are very clear providing for refund of accumulated Modvat credit if the same cannot be adjusted for any reason. As such the only condition in the said Rule is non-utiisation of the credit and no-jurisdiction vests in the Central Excise officer to find out the reason for such non-adjustment. The use of the expression that where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount is an u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge basis; that the assessee have not utilized the credit for subsequent clearances; that Rule 5 is not applicable in respect of the credit availed on one time basis in terms of the provisions of Rule 9A. The said order was appealed against before the Commissioner (Appeals) who confirmed the same. Hence the present appeal. 3. We find that in terms of the provisions of Rule 5 of Cenvat Credit Rules, 2002 where any inputs are used in the final products which are cleared for export under bond... the Cenvat credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards demand of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refund on the ground that refund cannot be granted in respect of the said credit in terms of Rule 5. However, we find that Rule 3(2) allow an assessee to take Cenvat credit of the duty paid on inputs lying in stock or in process or contained in the final product lying in stock on the date on which any goods seized to be exempted goods or any goods become excisable. As such Rule 3(2) is the enabling provision entitling an assessee to avail the credit and notification issued under Rule 9A was only for quantifying the credit amount. Serial No.5 of Notification No. 11/2002-C.E. (N.T.) issued under Rule 5 relates refund of that credit of duty on inputs allowed under Rule 3 of the said rules against goods exported during that quarter of month t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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