TMI Blog2023 (5) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... nto their records for which purposes we remand the matter to the original adjudicating authority. In the remand proceedings appellant submitted all the documents required for verification and quantification. All the documents were verified by the jurisdictional range officer and vide his report dated 25.11.2006/ 12.12.2006, referred in the order of original authority observed, The calculation of refund claim on average basis is found in order. If on verification of the documents submitted the quantum of refund claim has been found in order by the jurisdictional authorities have been found in order, then the in terms of the CESTAT Order, the refund should have been granted to the appellant. From the CESTAT order, it is observed that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd can be sanctioned only if claimant is unable to utilize the credit at all and not restricted to home clearances. If the assesses is in a position to utilize the credit for clearance of goods either for home or export, then the condition 5 of the Notification is not satisfied. Further, under Rule 3 of Cenvat Credit Rules,2002 there is no restriction for utilization of credit within particular period. 12. It is also revealed that the Hon'ble CESTAT has allowed the Cenvat credit availed by the appellant on merits and held that the appellant was entitled for refund of the same under Rule 5 of Cenvat Credit Rules, 2002 and directed the lower formation to quantify the refund amount after looking into the appellant's records. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s managers) without correlation amount to absence of any documentary evidence. The ratio of order is applicable in the instant case as claim is unsubstantiated. 14. The contention of the appellants that adjudicating authority has passed the order without adhering to the directives of the Hon'ble CESTAT Mumbai is incorrect in as much as the Order-in- Original has been passed by the adjudicating authority as per the directions of the Hon'ble CESTAT. Further, adjudicating authority has not violated principles of natural justice by relying the correspondence of Range Supdt., as the same has been done in accordance to procedure of led down in the Central Excise (CBEC - Supplementary Instructions) 2003-04. It is also revealed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the facts on record, the appellant is engaged in the processing of textile fabrics. mainly cotton fabrics and exporting the same under bond. As a result of export of the final products. Modvat credit availed in respect of the inputs got accumulated in their records and could not be utilized for home clearance. for payment of duty. Accumulation of credit was also on the ground that whereas the rate of duty on input was 10%, final product attracted duty only @5%. Accordingly, the refund claims on monthly basis was filed by the appellant in terms of the provisions of Rule 5 of the Cenvat Credit Rules. 2002 read with Notification No 11/02-CE (NT). The said refund claims were rejected by the original adjudicating authority i.e. the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not able to utilize the credit within one month, he could claim refund of the credit of duty paid on the inputs used in the manufacture of final product which stands ultimately exported under bond. As such the objection of the authority below that the appellant could have utilized the said credit for future clearances is clearly erroneous. 5. It is also seen that the appellant had availed transitioral credit in terms of the provisions of Rule 9A of the Cenvat Credit Rules. 2002 and notification No. 35/03-CE(NT) dated 10.4.2003 to the tune of Rs 13.19.080/-. The said rule read with Notification in question entitled the assessee to avail the credit as specified therein in respect of inputs lying in stock or semi processed or on inputs c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of accumulated Modvat credit if the same cannot be adjusted for any reason. As such the only condition in the said Rule is non utilization of the credit and no jurisdiction vests in the Central Excise officer to find out the reason for such non adjustment. The use of the expression that where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount' is an unlimited expression and cannot be narrowed or curtailed down by the departmental authorities. 7. In view of our foregoing discussion, we set aside the impugned order and hold that the appellant is entitled to the refund of the accumulated credit which shall be quantified by the authority below, after looking into their record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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