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The Commissioner of Customs, Central Excise and Service Tax Panaji, Goa Versus Automobile Corporation of Goa Limited

2016 (4) TMI 1066 - BOMBAY HIGH COURT

Refund of Cenvat credit - Rule 5 of CCR Rules, 2004 - Rejected on the ground that respondents are not manufacturers - Inputs used in the manufacture of final products which were exported - Certificate of Chartered Accountant certifies the same - Respondents submitted that they were not making any claim in respect of credit availed on input services but only on credit availed on inputs and the average export clearance is less then 50% of the total clearance during the subject period - Held that:- .....

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F. M. Reis, J.) Heard Shri C. A. Ferreira, learned Counsel appearing for the Appellant and Shri Jain, learned Counsel appearing for the Respondent. 2. The above Appeal filed under Section 35(G) of the Central Excise Act, 1944, challenging the Order dated 10.10.2013 passed by the Customs Excise & Service Tax Appellate Tribunal (CESTAT), whereby the Appeal preferred by the Appellant/Revenue came to be rejected. 3. Briefly the facts of the case as found from the records are that the Respondents .....

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Respondents are availing Duty Drawback; (b) Accumulation of credit is not due to export goods; and (c) that the goods were cleared under CT-1 certificate. The aforesaid show cause notices were adjudicated by the Assistant Commissioner by passing various Orders in original and rejected the refund claims by confirming the allegations made in the Show Cause notices. Some of the claims were rejected on th grounds which were not even raised in the show cause notice. Thereafter, the Respondents prefe .....

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Appeal before the Commissioner(Appeals) against the aforesaid Orders which the Commissioner disposed of by an Order dated 20.01.2010 rejecting the Appeals preferred by the Respondents by taking an altogether new and sole ground that the Respondents are not the manufacturer and, therefore, cannot file refund claim under Rule 5. But, however, the Commissioner(Appeals) gave up the objections raised by the Department in the Show Cause notices and Orders in the original. The Respondents, therefore, f .....

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ls) to decide the refund claims for verification. The Commissioner(Appeals) vide Order in Appeal dated 23.09.2011 held that the refund claims are eligible in terms of Rule 5 and, accordingly, directed the Lower Authority to process and sanction/grant the refund claims after verification the quantum claimed. Thereafter, the claims were verified by the Superintendent and a report was submitted to the Assistant Commissioner. The Assistant Commissioner thereafter by an Order dated 28.09.2012, sancti .....

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nds taken by the department in their appeal are factually incorrect. The Respondents also contended that the grounds taken by the Department are irrelevant. The Commissioner(Appeals) by an Order dated 22.03.2013, rejected the Appeal filed by the Revenue/Appellant herein. After considering all the facts and circumstances, the Commissioner(Appeals) held that the ground taken by the Revenue in Appeals are not correct since the pre-audit verification was completed in favour of the Respondents and th .....

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sel appearing for the Respondent. With the assistance of the learned Counsel, we have also gone through the Orders passed in the above proceedings. On perusal of the impugned Order, we find that the learned Tribunal has noted that the contention of the Appellants was that though the refund was being adjudicated under Rule 5 of the Cenvat Credit Rules, 2004, nevertheless, the safeguards and the conditions mentioned therein were not being examined. It was further contended that the adjudicating au .....

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urther noted that such refund accumulated credit on which inputs/input services can be refunded to the manufacturer in respect of export goods in case the assessee is not able to utilize the same. The learned Tribunal also noted that in Order dated 28.09.2012, passed by the Assistant Commissioner it has been categorically stated that all claims were verified by the Range Office and upon scrutiny of the refund claim to the tune of ₹ 10,24,918/-, were time barred as the claim was not filed w .....

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