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Shri A. Thangavel Versus Commissioner of Central Excise, Salem

2015 (10) TMI 419 - CESTAT CHENNAI

Denial of Refund claim - Refund of unutilized CENVAT Credit - whether the appellants are eligible for refund claim of the unutilized credit under Rule5 of CCR - Held that:- Appellants cleared the goods to various garment manufacturers/exporters based on the certificate issued by the jurisdictional Asst. Commissioner of the garment manufacturer under Notification No. 43/2001. - even though the appellant is not an exporter but the goods were cleared under the notification No. 43/2001, which is int .....

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upal, AC (AR) ORDER Per: R Periasami: This appeal is arising out of the order of the Commissioner (Appeals) against the rejection of refund claim. 2. The brief facts of the case are that the appellant claimed refund of ₹ 18,31,279/- under Rule 5 of the Cenvat Credit Rules, 2002, for the unutilised cenvat credit for the period 2004-05. The adjudicating authority rejected the refund claim on the ground that the appellant has not submitted the proof of documents of exports from the claimant&# .....

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ditions stipulated under notification No. 43/2001 and got registered themselves before the central excise authority before procuring the goods duty free and execute a general bond. Thereafter, the jurisdictional Assistant Commissioner endorses the application under Annexure-1 of the said notification for clearance of the goods from the appellants premises. The garment manufacturer fulfils the condition of the notification and export the goods under ARE-2 under bond. Therefore, even though they a .....

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certificate which is similar to Chapter X procedure the goods are deemed for clearance for export ultimately by the garment manufacturer. The garment manufacturer procured the goods for appellant duty free under the notification and the finished goods were exported under bond by following ARE-2 procedure, the question of claiming draw-back by the exporter does not arise. Therefore, the cenvat credit so availed on various inputs used in the fabrics supplied to garment exporter they filed the ref .....

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of his contention. - SVM Textile Mills Vs. CCE, Coimbatore 2006 (199) ELT 270 (Tri.-Chen.) - Jain Textiles Industries Vs. CCE, Delhi-III 2009 (247) ELT 796 (Tri.-Del.) - Tribunal's Final Order No. 40551/2013 dated 08.11.13 in the case of Pioneer Processing Vs. CCE, Salem 4. On the other hand, Ld. AR reiterated the findings of the Order-in-Original and para-4 of the Order-in-Appeal. She submits that the appellant has not fulfilled the conditions specified under the notification No. 43/2001 i .....

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eligible for refund claim of the unutilized credit under Rule5 of CCR. Both the authorities below have rejected the refund claim on the grounds that they are not the actual exporters and also they failed to produce the documents as per the notification No. 11/2002. I find that there is no dispute on the fact that the appellants cleared the goods to various garment manufacturers/exporters based on the certificate issued by the jurisdictional Asst. Commissioner of the garment manufacturer under N .....

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uty for the purpose of use in the manufacture or processing of export goods and their exportation out of India, to any country, namely :- (i) the manufacturer or the processor intending to avail benefit of this notification shall register himself under rule 9 of the Central Excise (No.2) Rules, 2001; The said notification clearly envisages that the manufacturer of garments intending to avail procurement of goods without payment of duty for the purpose of manufacture and their exportation out of .....

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urer under the above notification for using in the manufacture of final products and exporting the same out of India. On perusal of the copies of the letter submitted by the Ld. Advocate, I find that the jurisdictional Asst. Commissioner duly certified the application under Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 for procurement of fabrics from the appellant. The jurisdictional Asst. Commissioner also certified that M/s. Texpo .....

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ted and also given the list of shipping bill details. Therefore, it is evident that the goods cleared under CT-2 under the notification and were duly exported. The only question is that for claiming refund under Rule 5 read with Notification No.11/2002 in para-4. Condition No.4 of the notification stipulates that the appellant should submit the copy of shipping bill, export obligation, bill of lading, duly certified by the officer of customs. This condition is not applicable to the appellant as .....

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ated 08.11.13 in the case of Pioneer Processing Vs. CCE, Salem , and allowed the refund. The relevant portion of the said order is reproduced below:- "I have considered submissions of both sides. I note that when the claim was initially filed the appellant was not asked to submit Bill of Lading numbers or shipping bill numbers and the claim was rejected purely on legal ground. After considerable passage of time it is not possible for the appellant to produce such document which did not belo .....

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igned by the Assistant Commissioner having jurisdiction over the person procuring the goods. The said Assistant Commissioner has a responsibility to ensure that the goods so procured were used in manufacture of final products and such final products were exported and no drawback was claimed on such goods. Quite often it may not be possible to establish one to one correlation between the raw material supplied and the goods exported and consequently between the raw material supplied and the Shippi .....

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