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2016 (10) TMI 37 - CESTAT ALLAHABAD

2016 (10) TMI 37 - CESTAT ALLAHABAD - TMI - 100% EOU - Refund claim - Rule 5 of Cenvat Credit Rules, 2004 - export of goods under bond - goods viz., Photovoltaic Solar modules, panels and cells manufactured were exempted under Notification No. 06/2006-CE dated 01-03-2006 as amended by Notification No. 12/2012-CE dated 17-03-2012 - Held that:- in view of the finding by the Original Authority that at the time of clearance of the goods in domestic tariff area duty foregone on the inputs equal in am .....

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le to be refunded under Rule 5 of Cenvat Credit Rules, 2004. - Decided in favour of appellant - Appeal No. E/70585/2016-EX[DB] With MISC. Application No. E/MISC/70321/2016 - Final Order No. 70854/2016 - Dated:- 15-9-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri A.P. Mathur, Advocate, for the Appellant Shri Rajeev Ranjan, Joint Commissioner, (AR), for the Respondent ORDER Per Anil G. Shakkarwar The present appeal is filed by the appellant challen .....

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d the appellants are availing Cenvat credit facility. Appellants are also exporting the goods under bond. The appellants filed a claim for Refund of ₹ 2,66,28,814/- for the period from July, 2012 to September, 2012 and October, 2012 to December, 2012 under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE(NT) dated 18-06-2012. The said claim for refund was rejected by the Assistant Commissioner vide Order-in-Original No. 375-376/R/AC/N-IV/2013-14 dated 30-07-201 .....

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envat credit of Excise duty and Service Tax paid under Rule 3 of the Cenvat Credit Rules, 2004. The Original Authority decided the said claim for refund through Order-in-Original No. R-62/AC/N-II/2015-16 dated 24-08-2015. The Original Authority has held that the appellants were manufacturing Photovoltaic Solar modules, panels and Photovoltaic Cells falling under tariff Item No. 85414011 of first schedule to Central Excise Tariff Act, 1985 and they were exporting their goods more than 90% under b .....

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the appellants were required to pay duty foregone on inputs procured under Notification No. 52/2003-Cus & 22/2003-CE both dated 31-03-2010, used in the manufacture of finished goods in terms of proviso to Section 3(1) of Central Excise Act, 1944 and further as per second proviso to para 6 of Notification No. 22/2003-Cex dated 31-03-2003 which provides that when the goods are not excisable, duty foregone equal in amount to that leviable on the inputs obtained under said notification and used .....

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were exempted under Notification No. 12/2012-CE dated 17-03-2012 and as provided under Rule 6(1) of Cenvat Credit Rules, the appellants were not entitled for Cenvat credit of duty paid on inputs, capital goods and Service Tax paid on inputs services and therefore he rejected the application for refund. 3. Aggrieved by the said Order-in-Original, the appellant preferred an appeal before ld. Commissioner (Appeals), Meerut-II, Noida wherein the grounds of appeal were that the appellants cleared th .....

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admitted in the impugned Order-in-Original that the goods manufactured by them were exported under bond. The ld. Commissioner (Appeals) has held that the exception created in Sub-rule (6)(v) relates to export of goods without payment of Excise duty under bond and in other words such goods will attract Excise duty when cleared for home consumption and that the goods in question were wholly exempt from Excise duty and therefore they were not eligible for admissibility of Cenvat credit and he rejec .....

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elied on various pronouncement decided by Hon ble High Court and this Tribunal on various aspects of refund under Rule 5 of Cenvat Credit Rules, 2004. 5. Heard the ld. Counsel for the appellant who has submitted that the Original Authority has held that the goods were exported under bond, the Original Authority also has held that when the goods were cleared in domestic tariff area the duty forgone on the inputs equal in amount of that leviable on the inputs used in the manufacture of such goods .....

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