TMI Blog2007 (5) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... as consideration are that the appellants/manufacturer are engaged in processing of cotton fabrics and clear the goods for home consumption as well as for exports. They filed refund claim under Rule 5 of the Cenvat Credit Rules, 2002 on the ground that appellants could not utilize the amount of Cenvat credit which was accumulated in their account. The said refund claim was rejected by the lower authority. 3. Learned Advocate appearing on behalf of the appellant submits that the issue is, now squarely covered by the decision of the Tribunal in the case of Navbharat Industries v. Commissioner of Central Excise, Thane-I reported at 2006 (199) E.L.T. 148 (Tri.-Mumbai). It is his submission that there is no dispute as to eligibility of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat credit earned in respect of inputs used in the final products cleared or export can be granted only if such credit cannot be utilized towards payment of duty of excise on any final products cleared for home consumptions or for export. In the appellants case there is no denial to the fact that the final products are not cleared for home consumption or that the goods cannot be cleared for export on payment of duty. The appellants have contended that the grey cotton fabrics received by them were liable to excise duty @ 10% whereas the processed goods were liable to duty @ 5%. I find that Notification No. 7/2003-C.E. was amended by Notification No. 38/2003 dated 30-4-2003 which prescribed an effective rate of 5% for cotton fabrics not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product which stands ultimately exported under bond. As such the objection of the authority below that the appellant could have utilized the said credit for future clearances is clearly erroneous. It is also sent that the appellant had availed transitional credit in terms of the provisions of Rule 9A of the Cenvat Credit Rules, 2002 and Notification No. 35/2003-C.E. (N.T.), dated 10-4-2003 to the tune of Rs. 13,19,080/-. The said rule read with Notification in question entitled the assessee to avail the credit as specified therein in respect of inputs lying in stock or semi- processed or on inputs contained in the finished goods lying in stock. The authorities below have rejected the refund on the ground that refund cannot be granted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unlimited expression and cannot be narrowed or curtailed down by the Departmental authorities." It can be noticed that the issue involved in this case is squarely covered the decision of the Division Bench in the case of Navbharat Industries (supra). Accordingly, in the facts and circumstances of the case, respectfully applying the ratio of the decision of Division Bench in the case of Navbharat Industries (supra) the impugned order dated 22-8-2005 is set aside and the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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