TMI Blog2016 (5) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority 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 found that the impugned order is beyond the grounds on which the permission was granted to prefer an appeal in the review order which is not permitted by law. Therefore, I do not consider it appropriate to record a finding on this point once the appellant is succeeding on merit and therefore I do not think it appropriate to decide this issue in this case when the appellant is otherwise entitled to the relief on merit and therefore I hold that the impugned orders are unsustainable in 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. Jagdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally 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 adjudicating authority on the ground that the original authority has failed to bring on record in the impugned order whether the inputs/input services are used in relation to manufacture of resultant exported goods, whether accumulated credit can be used for the purpose of domestic clearance. Thereafter the appellant has filed the present four appeals challenging the Orders-in-Appeal as stated supra. 3. Learned counsel for the appellant submitted that the appellant has filed four refund claims as 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) the average export clearances of final products or the output services 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 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 customs to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds. 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same has been used in the manufacture of goods exported. He further submitted that the conditions specified in the notification have been taken into consideration by the original authority while sanctioning the refund. He also submitted that in all the cases sanctioning authority has observed that the assessee has fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and therefore refund was sanctioned. He also submitted that there is a clear finding by the JAC that 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned counsel for the appellant that the proceedings initiated under Section 35E(2) cannot be sustained in the absence of show-cause notice for recovery of erroneous refund is issued to the appellant. In support of this submission he relied on number of authorities which are as follows: a) CCE V. Suprajit Engg. P. Ltd. reported in 1993 (64) E.L.T. 273 (T) b) Grasim Industries Ltd. V. CCE, 2011 (271) E.L.T. 164 (SC) c) Panyam Cements Mineral Indus Ltd. V. CCE, 2004 (178) E.L.T. 434 (T-Bang.) d) Doothat Tea Estate Kanoi Plantation (P) Ltd. V. CCE, 2001 (135) E.L.T. 386 (T) 5. On the other hand the learned AR submitted that there is no need to issue show-cause notice for recovery of erroneous refund and in support of his submission he has also relied upon the following case laws: a) CCE, Shillong V. Woodcraft Products Ltd. 2002 (143) E.L.T. 247 (S.C) b) La-Bel Laminates Ltd. V. CCE, Rajkot 2004 (177) E.L.T. 312 (Tri.-Mum.) c) CCE, Mumbai-II V. Vikas Testing Development Lab 2009 (238) E.L.T. 790 (Tri.-Mum.) d) CC CE, Tirupati V. Panyam Cements Minerals Industries Ltd. 2016 (331) E.L.T. 206 (A.P.) e) GTC Industries Ltd. V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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