TMI Blog2017 (8) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... 70741/2017-SM[BR] - Dated:- 14-7-2017 - Mr. Anil G. Shakkarwar, Member (Technical) Shri Pawan Kumar Singh, Supdt (AR), for Appellant ORDER Per: Anil G. Shakkarwar The present appeal is directed against Order-in-Appeal No.428-429-CEX/APPL/KNP/2008 dated 21/11/2008 passed by Commissioner of Central Excise Customs (Appeals), Kanpur. 2. The brief facts of the case are that the respondent had filed two refund claims of ₹ 1,19,799/- and ₹ 6,275/- in respect of inputs used in manufacture of their final products falling under Chapter Heading No.3005 of schedule to Central Excise Tariff Act, 1985, exported under bond, on the ground that they were not in a position to utilize Cenvat credit of the duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit on the Central Excise duty paid and service tax paid on the inputs and input services. Therefore, learned Commissioner (Appeals) through the impugned Order-in-Appeal set aside the said Order-in-Original dated 04.09.2008 and allowed the appeal. Aggrieved by the said order, Revenue is in appeal, before this Tribunal. 3. The main ground of revenue is that when the said Rule-5 which has allowed refund of unutilized Cenvat credit itself stipulates that no refund of unutilized Cenvat credit will be allowed if the drawback under the Customs and Central Excise Duty drawback Rules, 1995 have been allowed, it was not proper for the learned Commissioner (Appeals) to cocludee that such refund could still allowed if only drawback of Customs por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Customs Act, 1962 (52 of 1962) and the rules made thereunder, or of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, or of the Finance Act, 1994 (32 of 1994) and the rules made thereunder, the drawback admissible on the said goods shall be reduced taking into account the lesser duty or tax paid or the rebate, refund or credit obtained :] On plain reading of said Rule-3 reproduced hereinabove, it is clear that the availment of Cenvat credit will prevail over disbursement of drawback. Therefore, on the ground that drawback of Customs duty has been paid to the respondent, refund of Cenvat credit of Central Excise duty paid on inputs and service tax paid on input service under said Rule-5 cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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