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TMI Blog2014 (4) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... R), for the Respondent. ORDER The appellants filed this appeal against rejection of refund claim of Rs. 19 lakhs under Rule 5 of Cenvat Credit Rules, 2002 read with Section 11B of the Central Excise Act, 1944. 2. Heard both sides and perused the records. 3. The appellants are engaged in the manufacture of "Flavoured Drink Concentrate" classifiable under sub-heading 2108.90 of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of duty. It has been observed that as per condition (v) of Notification No. 111/2002-C.E. (N.T.), dated 1-3-2002, read with Rule 5 of Cenvat Credit Rules, 2002, the appellants should have given preference to make use of the credit balance available against the goods exported and if it was not possible to make such adjustment, then only other means of export, i.e. clearing without payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer avails of drawback claim or claims rebate of duty. In the present case, there is no dispute that the appellant had cleared the goods under bond without payment of duty, further, there is no dispute that the appellants have not availed the drawback or rebate of duty. the refund of credit shall be allowed, as the amount cannot be adjustable against clearance of home consumption or for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 731 (Tri.-Chennai) (d) Idol Textiles Ltd. v. CCE, Thane - 2007 (217) E.L.T. 299 (Tri.-Mumbai) The Tribunal in the case of Jenntex Engg. Co. (supra), observed that the ground on which refund claim was rejected that the assessee could have exported the goods on payment of duty utilizing credit is a wrong ground and a misdirected one. On a plain reading of Rule 5 of the said Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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