TMI Blog2017 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... 51926/2017-ST(SM) - Dated:- 18-1-2017 - Shri V. Padmanabhan, Member (Technical) Shri A.K. Jain, Representative for the Appellants Shri S. Nunthuk, DR for the Respondent ORDER These three appeals have been filed against the order in appeal dated 11.02.2013. The appellant is a manufacturer and exporter who was operating under 100% EOU scheme. They were manufacturing and exporting ready made garments and were availing the Cenvat Credit of service tax paid on input services under the Cenvat Credit Rules 2002 / 2004. The dispute pertains to the claims for refund filed by the appellant for encashing unutilized Cenvat Credit of input services used in the manufacture of the final product which was exported during the period 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal products which are cleared for export. He further relied upon the decision of the Tribunal in the case of Fibres and Fabrics International Pvt. Ltd. Vs. CC Bangalore 2009 (02) LCX 0042 in which an identical issue for identical period has been considered by the Tribunal and the refund on input services has been permitted. Accordingly, he prayed that the refund may be sanctioned in his case also for the period 10.09.2004 to 31.03.2005. 4. Ld. DR on the other hand, opposed the submissions made by him. He reiterated the findings in the impugned order and further, submitted that the notification no. 5/2006 which has been issued on 14.03.2006 cannot be presumed to be having retrospective effect. He relied upon the decisions in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute vide notification no. 23/04-CE(NT) dated 10.09.2004. Accordingly, the claim of the appellant is that refund must be sanctioned. He has also relied upon the decisions of the Tribunal in the case of Fibres and Fabrics International Pvt. Ltd. (Supra). 6. I have gone through the said decisions of the Tribunal. I find that the Tribunal has dealt with an identical matter of grant of refund of service tax paid on input services used in goods which are exported. While providing the sanction of such refund have been for period prior to 14.03.2006 the Tribunal held as follows: 8. On a very careful consideration of the issue, we find that with effect from 10-9-2004, Rule 5 of Cenvat Credit Rules, provided for refund of Cenvat C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification 5/2006 dated 14-3-2006 providing refund of input credit also, which has been not utilized. 9. On a very careful consideration of the matter, in the present appeals, all the refund claim pertains to period prior to 14-3-2006. However, as on 10-9-2004 itself, we have already given the reproduction of Rule 5, the rule itself provides for the utilisation of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at that time; we cannot deny the benefit provided in the Rule. Moreover, all the case-laws cited by the learned advocate point out that the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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