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2016 (5) TMI 1213 - CESTAT BANGALORE

2016 (5) TMI 1213 - CESTAT BANGALORE - TMI - Whether the order of refund sanctioned by the JAC is in accordance with Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006 dated 14.03.2006 and whether the Order-in-Appeal has traversed beyond the grounds of appeal authorized in the review order of the Commissioner of Central Excise under Section 35E(2) of the Act and finally whether for recovery of an erroneous refund, the department is required to issue a show-cause notice under Se .....

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e appellants have furnished all the relevant documents to the satisfaction of the sanctioning authority and the sanctioning authority in all the refund orders has clearly held that the appellants have fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and there are no legally sustainable ground on which the validly sanctioned refund orders should be set aside and therefore the findings returned by the Commissioner (Appeals) on merit are set aside. it is also .....

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law and are set aside. - Decided in favour of appellant - E/2277/2010, E/2278/2010, E/1305/2011, E/1306/2011, -SM - Final Order Nos. 20362-20365/2016 - Dated:- 27-5-2016 - SHRI S.S. GARG, JUDICIAL MEMBER For the Appellant : Shri Chidananda Urs, Advocate For the Respondent : Shri N. Jagdish, AR ORDER Per: S.S. GARG The appellant has filed four appeals numbering E/2277/2010, 2278/2010, E/1305/2011 and E/1306/2011, against the impugned orders dated 31.08.2010 and 24.03.2011 passed by the learned Co .....

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lants submitted four refund applications seeking refund of the amount as mentioned below in the table under Rule 5 of Cenvat Credit Rules 2004 for the period mentioned in the table. Sl. No. Appeal No. Period involved Refund Claimed (Rs.) Refund Sanctioned (Rs.) 1 E/2277/2010 January to March 2009 2,33,395/- 2,25,399/- 2 E/2278/2010 April to June 2009 2,35,244/- 2,35,073/- 3 E/1305/2011 July to September 2009 3,51,270/- 3,39,990/- 4 E/1306/2011 October to December 2009 3,72,578/- 3,72,508/- The a .....

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eived a copy of the appeal filed by the department pursuant to the directions of the Commissioner of Central Excise under Section 35E(2) of the Central Excise Act 1944 on the ground that the order of the adjudicating authority is legally not sustainable and the refunds granted in favour of the appellant are required to be set aside. Thereafter the appellate authority vide its Order-in-Appeal dated 31.08.2010 and 24.03.2011 allowed the departmental appeals by rejecting the refund granted by the a .....

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per Rule 5 of the Cenvat Credit Rules 2004 read with Notification 5/2006-CE (NT) dated 14.03.2006 and all the refund claims were sanctioned by the sanctioning authority but thereafter the order of the sanctioning authority was reviewed by the Commissioner of Central Excise under Section 35E(2) of the Act and the appeal was filed before the Commissioner (Appeals) and the Commissioner (Appeals) has wrongly allowed the appeal and set aside the order sanctioning the refund. In order to appreciate t .....

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s exported, the CENAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, co .....

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of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilized for payment of service tax on any output service. Explanation: For the purposes of this rule, the words output service which is exported means the output service exported in accordance with the Export of Services Rules, 2005.] The conditions as prescribed in Notification 5/2006 are reproduced herein below: 1. The final product or the output service is exported in accordance with the pr .....

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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 the case may be, in whose jurisdiction, - (a) the factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of .....

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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. Maximum refund # Total CENVAT credit taken on input services during the given period W export turnover w Total turnover. Illustration : If total credit taken on input services for a quarter = .....

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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 application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax .....

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ished all the relevant documents to the refund sanctioning authority and the sanctioning authority before granting the refund has considered all the documents as required under the Notification 5/2006. He also submitted that the department has not brought any evidence on records to show that the final product is not exported in accordance with the provisions of law. The appellants have also produced the proof of export and the input and input services on which credit has been availed and the sam .....

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t the domestic value of clearance and export turn over is in the nature of 0.8:99.20 which satisfied the conditions under para 2(a) of the notification. The learned counsel also submitted that the impugned order is beyond the grounds on which permission was granted to prefer an appeal in the review order and the impugned order has traversed beyond the grounds on which the appeal were preferred by the appellant. He also submitted that the proceedings initiated under Section 35E(2) cannot be indep .....

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ase. Firstly whether the order of refund sanctioned by the JAC is in accordance with Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006 dated 14.03.2006 and secondly whether the Order-in-Appeal has traversed beyond the grounds of appeal authorized in the review order of the Commissioner of Central Excise under Section 35E(2) of the Act and finally whether for recovery of an erroneous refund, the department is required to issue a show-cause notice under Section 11A or not. First .....

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lation to the manufacture of exported goods. Therefore in my considered opinion the appellants have furnished all the relevant documents to the satisfaction of the sanctioning authority and the sanctioning authority in all the refund orders has clearly held that the appellants have fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and there are no legally sustainable ground on which the validly sanctioned refund orders should be set aside and therefore as pe .....

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