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TMI Blog2017 (11) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... e Form A under Notification No. 5/2006 issued under Rule 5 of Cenvat Credit Rules, 2004. The respondents were issued with a show cause notice dated 02.05.2006 stating that the respondent did not give the evidence that the amount of unutilized Cenvat Credit of Rs. 3,09,38,664/- relates to inputs used against the goods exported during the period from 01.04.2005 to 31.03.2006 and also that the photocopies of the documents such as ARE-1 and shipping bill did not have signature of Authorized Signatory. Further it was stated that the respondent had failed to submit the original documents/records along with the said application in the Form A. On contest issue was adjudicated through Order-in-Original dated 24.05.2006 wherein the Original Authority has rejected the said application for refunds on the grounds that proper and original documents were not submitted and by holding that the amount of credit accrued on inputs said to have been used in the manufacture of goods exported was calculated by the respondent and certified by the Chartered Accountant on Standard Calculation basis, but not on the actual basis and could not be quantified but varied in their different submissions and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. have been submitted alongwith the refund claim on 31.03.2006 and again on 10.05.2006 alongwith the certificate of the Chartered Accountant; the concept of credit relating to inputs in stock, in pipeline and in finished goods has been imported by the adjudicating authority unnecessarily as the same is not required to be maintained under the provision and no such condition has been imposed in the rule for claiming refund; shipping bills are not required to be filed alongwith the refund application; stock position of inputs as on 31.03.2006 and proof of actual use has been given vide their letter dt. 10.05.2006 & 11.05.2006 which were well supported by certificate from Chartered Accountant; that the alleged four cases are not the offence cases like evasion of duty or clandestine removal but the routine notice to deny the benefit of Cenvat credit on technical grounds. Further, it is pleaded that the demand vide Order-in-Original 40/JC/MP/01 dated 02.08.2001 has been appropriated; demand vide Order-in-Original No.91/CDK-II/03 dated 18.11.2003 was set aside by the Commissioner (Appeals) vide Order-in-Appeal No.374/CE/APPL/KNP/05 on 20.12.2005; demand vide Order-in-Original No. 4/Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether lack of correlation between invoice ARE-1's and non-mentioning of engine number and chasis number on the Shipping Bill are reasonable cause to reject the refund claim; (vi) Whether it is mandatory on the part of the applicants to file the refund claim on quarterly basis; (vii) Whether the view of the adjudicating authority that claim is not sanctionable on the grounds of possibilities of its utilization when the factory goes in the production and effects domestic clearance; Now, I take up the point one by one. It is observed that the issue raised above relates to the point whether inputs have been used in the manufacture of final product which are exported and procedural requirements as provided under Notification No. 5/2006-CE(NT) dated 14.03.06 have been fulfilled. As regards use of inputs in the manufacture of exported goods, the proof have been submitted by the appellant in the form of extracts of the record maintained which is well supported by the certificate of Chartered Accountant. Nothing material has been brought on record by the adjudicating authority to prove that inputs procured has not been so used. Further, on the plea of the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. It is on record that all such details have been filed by the appellant subsequently. Bill of material alongwith Chartered Accountant's Certificate dated 09.05.06 has been filed vide letter dated 10.05.06; list of high value inputs alongwith Chartered Accountant's Certificate dated 09.05.06 has been filed on 11.05.06; original Shipping Bill and on board certificate have been filed vide letter dated 18.10.06 although submission of the same has been contested on the plea that export certificate given by the Customs Department on the back of ARE-1's are sufficient to prove export and as vide the provision of Para-12.1 of Chapter 7 of CBEC Manual readwith Section 2(12) of Customs Act, 1962, ICD is a port of export; copies of Shipping Bill, Bill of Lading, commercial invoice, packing list, excise invoice; ARE-1's have been filed on 01.11.06. Since the documents filed vide letter dated 18.10.06 and 01.11.06 were filed after passing of impugned Order-in-Original, an enquiry was caused with the Assistant Commissioner, Central Excise Division-II, Kanpur, whether the documents are sufficient to prove export of goods. The Assistant Commissioner in his reply has submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that credit of Rs. 945/- lakhs is attributable to inputs used in export of 24607 scooters and 9076 motor cycles; the fact that credit per vehicle of scooter and motor cycle may not be the same; the fact that Rs. 2254.50P. relates to speedy model of scooter only and has been accepted by the adjudicating authority as mentioned in para-2 of page 7 of the adjudication order. Under the circumstances, the plea of difference in calculation is not sustainable. On the issue of absence of documentary correlation between Central Excise invoice and shipping bill and non-mentioned of engine number and chasis number of ARE-1, It is observed that since the lapses are procedural in nature and the export of goods has been proved by the bill of lading as well as the certificate given by the Customs officer on the back of ARE-1's submitted by the appellant, the plea is not sustainable. On the issue of not filing the refund claim on quarterly basis, I am of the opinion that there is no bar under the notification to the file the refund claim on annual basis which is evident from the provisions of para-2 of the notification wherein no such condition has been imposed. It provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Rule 5 of Cenvat Credit Rules, 2004 as well as the judgments quoted supra, I am of the opinion that the balance of credit lying unutilized is refundable to the appellants. Accordingly, Order-in-Original is set aside." In above terms the learned Commissioner (Appeals) allowed the appeal. Aggrieved by the said order Revenue has preferred appeal before this Tribunal. 3. The main ground of the Revenue is that the entire credit involved on the inputs used in goods exported during the quarter ending March, 2006 was exhausted and there was nothing as unutilized credit in respect of inputs used in the goods exported. Further the grounds also included that the respondents did not submit the quantity of inputs lying as such, the quantity of inputs contained in the goods in process and quantity of inputs contained in finished goods as on 31.03.2006 which was essential to ascertain and arrived at the quantum of unutilized credit in respect of the goods exported. 4. Heard the learned AR who has taken order through impugned Order-in-Appeal and submitted that the main ground of Revenue is that there was no Cenvat Credit left unutilized therefore, the question of refund of the same doe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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