2017 (2) TMI 299

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..... plain reading of the Rule 5, it is provided that for any reason adjustment of the credit is not possible, the refund shall be granted to the assessee against the export of the goods, therefore Commissioner(Appeals) had no jurisdiction to question the appellant that why credit could not be utilized for clearance of the goods for home consumption. The only condition is required that if there is acc .....

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..... ilized for the domestics clearances. Aggrieved by the impugned order, appellant is before me. 2. Shri. Sunil Agarwal, Ld. Counsel for the appellant submits that there is no dispute that accumulated credit was more than the refund claimed made by the appellant and that itself shows that modvat credit availed by the appellant was not utilized and lying as unutilized accumulated balance in the mod .....

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..... the findings of the impugned order. 4. We have carefully considered the submissions made by both sides. 5. The appellant claimed they claimed refund under Rule 5 which reproduced below: Rule 5. Refund of CENVAT credit. - Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, .....

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..... ut service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of t .....

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..... rt of goods should be refunded in terms of Rule 5. Judgments relied upon by the Ld. Counsel directly applies to the facts of the present case. I therefore set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law. The adjudicating authority is directed to disposed the refund within a period of three months from the date of receipt of this order. .....

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