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TMI Blog2017 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 10.09.2004-31.03.2005. The refund claim was rejected by the original authority and the same was upheld by the impugned order. Aggrieved by these orders the present appeal has been filed. 2. With the above background, I have heard Shri A.K. Jain, General Manager of the appellant company and Shri S. Nunthuk, DR for the Respondent. 3. Shri A.K. Jain submitted that the refund has been rejected under Rule 5 of the CSR 2004. The Central Excise issued notification no. 5/2006 w.e.f. 14.03.2006, was issued in supersession of the earlier notification no. 11/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case of Karvembu & Co. Vs. Under Secretary, Department of Revenue 2010 (20) STR 591 (Mad.) and in the case of CC Bangalore Vs. Spice Telecom 2006 (203) ELT 538 (SC) and submitted that as held by the Superior Judiciary, if any, notification issued subsequently does not state that it has retrospective effect, the same will be valid prospectively only. Accordingly, he submits that impugned order may be upheld. 5. The dispute pertains to the claim of refund for unutilized Cenvat Credit on input services used in the manufacture of final product which is cleared for expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Credit on input or input service. The said rule is reproduced below: "Where any input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the Cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of duty of excise on any final products cleared for home consumption or for export on payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 notification dated 14-3-2006, would be applicable even to the period prior to it in view of the rule position, Rule 5 as it existed there. In these circumstances, we do not find any merit in the impugned order. Moreover, the Commissioner himself in an earlier order had taken a different view and that order has not been appealed against. The same has reached finality. In these circumstances, the impugned order has no merits, the same is set aside. We allow the appeals with consequential relief." 7. By following the cited decision of the Tribunal I set aside the impugned order and allow the appeals w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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