TMI Blog2022 (9) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice, it is observed that in the show cause notice, refund claim was proposed to be rejected on the ground that the issue is dependent on the outcome of the judgment of the Hon ble Gujarat High Court in ESSAR STEEL LTD. VERSUS UNION OF INDIA [ 2009 (11) TMI 141 - GUJARAT HIGH COURT] , whereas, the Original Adjudicating Authority has rejected the claim not only on the said proposed ground but also on the ground that the amount of Cenvat credit availed on imports during the relevant quarter April 2008 to July 2008 was set off against the duty paid on the goods cleared during the said quarter, where after only an amount of Rs. Rs.2,16,37,636/- was available to the appellants against the refund claim of Rs.27,40,82,605/- - There is no error committed by Commissioner (Appeals) when the O.I.O has been held to have been passed on some extraneous factors which were neither proposed in the show cuase notice nor were related to the issue. The appeal of Revenue is dismissed. - Excise Appeal No. 97 of 2011 [DB] - FINAL ORDER No. A/30095/2022 - Dated:- 23-9-2022 - MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND DR. RACHNA GUPTA, MEMBER (JUDICIAL) Shri A V L N Chary, Authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed in the input Cenvat credit amount of the assessee/respondent as on 30.06.2008, no amount was virtually attributable to the Cenvat credit accumulated on account of the clearances made by the assessee for export/deemed export during the quarter April 2008 to June 2008. The Original Adjudicating Authority has appreciated the same with utmost clearity in para 15 of the O.I.O dated 12.03.2010. It is further submitted that refund is otherwise allowed only when a manufacturer is not is a position to utilize the import credit allowed against the goods exported during the quarter to which such refund claim relates to. It is further mentioned that since the Arcelor/assessee/respondent had utilized Cenvat credit of Rs.18,25,05,745/- during December 2009 to March 2010, leaving the balance of Cenvat credit to Rs.9,15,76,860/- by the time of passing of O.I.O dated 12.03.2010, the same was rightly rejected by the Original Adjudicating Authority. Commissioner (Appeals) has committed an error while not appreciating the non-availability of requisite balance of unutilized Cenvat credit, the refund whereof was claimed. 3.1 Learned Departmental Representative also mentioned that delay in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice dated 03.11.2008 which proposed the rejection of the refund claim of an amount of Rs. Rs.27,40,82,605/- dated 04.08.2008 for a quarter of April 2008 to June 2008 as was filed under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 05/2006 dated 14.03.2006. Foremost Rule 5 needs to be looked into. It reads as follows: Where any input or input service is used in the manufacture of final product which is cleared for export under band or letter of undertaking, as the case may be, or used in the intermediate product 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, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. from DTA to SEZ and accordingly, the transaction in question admittedly was export of finally manufactured goods. Following are also the admitted facts: (i) the impugned refund claim along with the connected documents for the Quarter April 2008 to June 2008 was filed within the time limit of one year stipulated under Section 11B of Central Excise Act, 1944. (ii) The Range Officer had reported that there were no government outstanding dues against the claimant. (iii) Since the refund claim pertains to the refund of Cenvat credit, the same was out of the bar unjust enrichment in terms of para C of provision to Section 11B(2) of Central Excise Act, 1944. (iv) The Bills of export under which the assssee/respondent had cleared iron ore pallets for export/deemed export were not in the nature of free shipping bills or drawback shipping bills. (v) No drawback/rebate was being claimed against the said export/deemed export. (vi) No condition of Notification No. 05/2006-CE(N.T.) dated 14.03.2006 has been violated by assessee/respondent. 8. All these admissions when read with aforementioned Rule 5 and conditions of Notification No. 05/2006-CE(N.T.), dated 14.03.2006, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y unrelated to the refund claim filed by the appellant and that refund has wrongly been rejected on the pretext of pendency of the SCA before Hon ble Gujarat High Court. It has wrongly been proposed in the impugned show cause notice and wrongly confirmed in the impugned Order-in-Original that the stand of the assessee/respondent in the refund claim was contradictory to his contention before Hon ble High Court of Gujarat. The said findings of Commissioner (Appeals) are therefore hereby upheld. 10. Further, it is observed that the Commissioner (Appeals) has held the order of Original Adjudicating Authority to have been beyond the scope of show cause notice, it is observed that in the show cause notice, refund claim was proposed to be rejected on the ground that the issue is dependent on the outcome of the judgment of the Hon ble Gujarat High Court, whereas, the Original Adjudicating Authority has rejected the claim not only on the said proposed ground but also on the ground that the amount of Cenvat credit availed on imports during the relevant quarter April 2008 to July 2008 was set off against the duty paid on the goods cleared during the said quarter, where after only an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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