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2016 (12) TMI 89 - CESTAT AHMEDABAD

2016 (12) TMI 89 - CESTAT AHMEDABAD - TMI - Denial of refund claim u/r 5 of Cenvat Credit Rules, 2004 - De-oiled cake of Soyabean falling under Chapter 15 of Central Excise Tariff Act, 1985 attracting Nil rate of duty - product cleared for export under bond - whether the denial of refund on the ground that De-oiled cake of Soyabean attracts nil rate of duty, is justified? - Held that: - I find that the aforesaid issue has been settled by the decision of Hon'ble High Court of Himachal Pradesh in .....

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Misra, Hon'ble Member (Judicial) For the Appellant : Shri S.N. Gohil, Authorised Representative For the Respondent : Shri Anand Nainawati, Advocate ORDER Per Dr. D.M. Misra Heard both sides and perused the records. 2. This appeal is filed by the Revenue against OIA No. 403/2009-AHD-III-KCG/CE/COMMR-A- dated 21.12.2009 passed by Commissioner (Appeals), Central Excise Ahmedabad. 3. The facts in brief are that the appellant is engaged in the manufacture and clearance of De-oiled cake of Soyabea .....

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denied to them by the adjudicating authority. On appeal before the Commissioner (Appeals), the same was allowed. Hence, the Revenue is in appeal. 4. Ld. AR for the Revenue reiterates the grounds of appeal and submitted that since the final product was exempted they were not eligible to avail credit on the inputs and consequently cash refund of the credit under Rule 5 of CCR, 2004. 5. Ld. Advocate Shri Anand Nainawati for the appellant submits that eligibility for cash refund of accumulated cred .....

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le High Court of Himachal Pradesh in the case of CCE vs. Drish Shoes Limited (supra). Their Lordships observed as: 16. The Scheme of CENVAT Credit Rules, 2002, as also 2004, reference to the relevant provisions of which has been made hereinabove, shows that CENVAT credit/refund is allowed on the inputs of all manufactured goods which are not exempt from duty, as is clear from a combined reading of Rule 3 and sub-rule (1) of Rule 6 of the CENVAT Credit Rules, 2002, as also the Rules of 2004, so a .....

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se of dutiable goods. It appears that this led to anomalous situations. For example, if the goods were dutiable and were exported, credit for CENVAT could not be claimed in respect of input of those goods, at least under the aforesaid exception clause. To overcome this kind of anomalous situations, exception clause contained in sub-rule (6) of Rule 6 of CENVAT Credit Rules, 2004 has been made applicable to all excisable goods. 18. Learned counsel for the appellant argued that term excisable good .....

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utiable as also exempted goods. 20. In view of the above discussion, we hold that an assessee, manufacturing goods chargeable to nil duty, is eligible to avail CENVAT credit paid on the inputs under the exception clause to Rule 6(1), as contained in Rule 6(5) of CENVAT Credit Rules, 2002 and Rule 6(6) of CENVAT Credit Rules, 2004, used in the manufacture of such goods, if the goods are exported. Question No. 1 is answered accordingly. 21. As regards question No. 2, it is clear from a bare readin .....

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ients is concerned, there is no dispute that this is taxable service under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994 and the same was fully exempt from service tax during the period of dispute in terms of exemption Notification No. 8/2003-S.T., The question as to whether the appellant would be eligible for Cenvat credit in respect of the input services used in providing this service which had been exported without payment of service tax and whether this credit could .....

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bai) = 2012 (284) E.L.T. 45 (Tri.-Mumbai), wherein the Tribunal has held that if the assessee is providing a taxable service, although exempt by way of notification, but which had been exported, the assessee would be entitled to take Cenvat input credit in terms of Rule 5 of the Cenvat Credit Rules, 2004. We find that same view has been taken by the Tribunal in the case of M/s. Dell International Services India Pvt. Ltd. reported in 2009-TIOL-1957-CESTAT-Bang. = 2010 (17) S.T.R. 540 (Tri.-Bang.) .....

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