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2015 (6) TMI 1015 - CESTAT NEW DELHI

2015 (6) TMI 1015 - CESTAT NEW DELHI - 2016 (42) S.T.R. 105 (Tri. - Del.) - Denial of refund claim - Held that:- In this case, out of 70 export consignments cleared for export during July September 2007 period, in 11 consignments, the vessel in which the goods had been loaded sailed in October 2007. In other cases the vessel carrying the export goods left during July 2007 September 2007 period. Since the refund claim has been filed on 5/5/08, the same, in respect of all these export consignments .....

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of the 70 consignments cleared for export during July 2007 September 2007, within the prescribed limitation period, and by the time the refund claim was filed, the goods had already been exported out of India, refund in respect of 11 consignments cannot be denied just because the same were physically exported in October 2007.

Another ground for denial of refund is that the copies of shipping bills duly certified by the customs officers regarding export of the goods were not enclosed .....

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ies of shipping bills were produced. A substantive claim cannot be denied for a minor procedural violation.

There is merit in the appellants plea that the refund order has been correctly sanctioned by the Asst. Commissioner. - Appeal No. E/1839/2009-EX(SM) - Final Order No. 51916/2015-EX(SM) - Dated:- 11-6-2015 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) For the Petitioner : Ms. Surbhi Sinha, Advocate For the Respondent : Shri R.K. Mishra, DR ORDER PER ASHOK JINDAL: This appeal is against .....

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out payment of duty as per the provision of Rule 19 of the Central Excise Rules 2002. Since the appellant had taken input duty credit in respect of the duty paid inputs used in the manufacture of the yarn which had been exported and since the accumulated credit could not be utilized for payment of duty on clearance for home consumption, the Appellant, as per the provisions of Rule 5 of the Cenvat credit Rules, 2002, applied for cash refund of unutilised Cenvat credit of ₹ 39,87,276/- which .....

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with stay application has been filed. 2. Heard both the sides. 2.1 Ms. Surbhi Sinha, Advocate, the learned Counsel for the Appellant made the following submissions. (1) The refund order has been set aside by CCE (Appeals) is the grounds that - (a) since the refund claim is for quarter July 2007 to September 2007 and in some cases, the date of export is after September 2007, the refund is not admissible ; and (b) the original shipping bills, duly certified by the customs officer or duty certified .....

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here the let export order had been passed during this period. As per Hon ble Supreme Court s judgment in case of Union of India vs. Asian Food Industries reported in 2006 (204) E.L.T. 8 (S.C.), the relevant date of export is the date of let export order. (3) Notification No. 41/07-ST dated 6/10/07 prescribes conditions for grant of refund of service tax on services used for export of goods and clause (e) of para 2 provides that the said goods shall be deemed to have been exported on the date on .....

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al are at the best, procedural irregularity, for which refund claim cannot be rejected. In this regard, reliance is placed on the Tribunal s order in case of Unique Pharmaceutical Laboratories vs. CCE, Bombay reported in 1994 (74) E.L.T. 925 (Tribunal) and also in case of Philco Exports vs. CCE, New Delhi reported in 2009 (234) E.L.T. 568 (Tri. - Del.). (5) The Appellant in the memorandum of cross objection, filed before CCE (Appeals) in respect of the Department s appeal had mentioned that sinc .....

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ls were not produced, is incorrect and just because these copies of shipping bills could not be submitted with the refund claim, the same cannot be rejected. In fact para 13.1 to 13.7 of Chapter 7 Part II of CBEC s Central Excise Manual, 2005 mentions self attested copies of shipping bills as acceptable documents. (6) As per the Board s Circular No. 220/54/96-CX dated 4/6/96 cash refund of unutilized Cenvat credit is an incentive given to manufacturers and exporters and non grant of the same eff .....

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ed 14/3/06 issued under Rule 5 of the Cenvat Credit Rules, 2004. As per condition 2 of this notification, in case of units other than 100% EOUs, such claims for refund cannot be submitted more than once for any quarter in a calendar year. Since the claim in this case was for July 2007 - September 2007 quarter, the same can be only for the goods actually shipped during this period while the refund claim includes the exports where actual shipments were after September 2007. (2) The Appellant did n .....

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amp; ARE-2 for exports during July 2007 September 2007 period. The CCE (Appeals) has set aside the Assistant Commissioners order and disallowed the refund on the following grounds - (1) The refund claim under Rule 5 of Cenvat Credit Rules, 2004 is governed by Notification No. 5/2006 - CE (NT) dated 14/3/06 issued under this rule according to which exporter (other than a 100% EOU) is required to file refund claim not more than once for any quarter in a calendar year. The goods in question were c .....

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on which the ship/aircraft or while the goods are loaded, leaves India. (2) The copies of shipping bills duly certified by the Customs Officers were not enclosed with the refund claim. Though the Appellant submitted that they have received the Customs certified copies of shipping bills, the relevant rule in this regard is very clear that the same have to be submitted alongwith the refund claim. Therefore the refund is not admissible. 4. The cash refund of Cenvat credit accumulated due to export .....

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), No. 11/2002-Central Excise (N.T.), 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 : (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 serv .....

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es in value terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) the claim is filed by Export Oriented 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 .....

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y 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 total turnover for the given period to which the claim relates i.e .....

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ll mean the sum total of the value of final products and output services exported during the given period in respect of which the exporter claims the facility of refund under this rule. 2. Total turnover 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 a .....

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wed by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. 4.1 From a reading of the Notification it is clear that (a) the refund claim under Rule 5 of Cenvat Credit Rules, 2004, subject to fulfilment of conditions prescribed in the Notification, has to be filed not more than once for any quarter in a calendar year in a form prescribed in the notification, alongwith the relevant documents, and within the limitation period prescribed in S .....

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nd (c) While the refund claim can be filed in respect of goods cleared for export under bond/letter of undertaking during a quarter, it has to be filed only after export of the goods out of India, as the application for refund must be accompanied by shipping bills duly certified by customs officers that the goods have been exported. 5. In this case, out of 70 export consignments cleared for export during July September 2007 period, in 11 consignments, the vessel in which the goods had been loade .....

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