TMI Blog2023 (6) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of CENVAT Credit Rules, 2004 when a manufacturer is exporting the final product continuously without payment of duty, the CENVAT Credit on inputs-input services would be accumulating to his CENVAT Credit records. Such manufacturer would be entitled to utilize the CENVAT Credit either for payment of excise duty on final products cleared for home consumption or for export on payment of duty or for payment of service tax on output service. If these contingencies are not forthcoming for any reason, then manufacturer/output service provider can seek refund as provided under Rule 5 read with relevant or extant notifications so issued. In the present matter it is not in dispute that entire refund claim in question had been filed under Rule 5 of the rules, which is a beneficial provision for manufacturer who cleared final product or intermediate product for export without payment of duty under bond, etc. The refund of Cenvat credit under Rule5 would be applicable where any inputs are used in the final product which are cleared for export under bond or letter of undertaking, Cenvat credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibid. Appeal allowed by way of remand. - Excise Appeal No. 13441 of 2013- DB - Final Order No. A/ 11203 /2023 - Dated:- 7-6-2023 - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Miss, Disha Gursahaney , Advocate for the Appellant Shri, Tara Parakash , Assistant Commissioner ( AR ) for the Respondent ORDER RAMESH NAIR This appeal is filed against the Order-in-Appeal No. SRP/131-133/DMN/2013-14 dated. 15.07.2013 passed by the Commissioner (Appeals), Central Excise Customs, Vapi, Gujarat. 2. The brief facts of the case are that appellant had exported their final products of chapter 29 of CETA, 1985 and had preferred three refund claim, in respect of accumulated Cenvat Credit under the provisions of Rule 5 of Cenvat Credit Rules, 2004 read with Section 11B of Central Excise Act, 1944 and Notification No. 5/2006-CE (NT) dated 14.03.2006 on the ground that they were not in a position to utilize the cenvat credit of duty paid on raw materials. The department noticed several discrepancies in respect of the said claims and consequently issued three Show Cause Notices proposing to reject the claims. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it with the excise duty on final products as the said goods in the instant case are being exported only by way of export without payment of duty. 3.2 He also submits that no one to one co-relation between the goods exported and raw material utilized in the manufacture of goods is required. The facts of the judicial pronouncement relied by the Ld. Commissioner are different from the facts in the instance case. 3.3 He placed reliance on the following Judgments: Raychem RPG Pvt. Ltd. Vs. CCE, Palghar, Mumbai 2022-VIL-429-CESTAT-MUM-CE CCE Visakhapatnam I Vs. Arcelor Mittal Nippon Steel India Ltd. 2022-VIL-713-CESTAT-HYD-CE Bright Engineering Works Erstwhile 100% EOU Vs. CCE, Daman 2022-VIL-966-CESTAT-AHM-CE K Line Ship Management (India) Pvt. Ltd. Vs. Commissioner of Service tax, Mumbai 2017(7)TMI 412 CESTAT MUMBAI M/s Shell India Markets Pvt. Ltd. Vs. CCE 2019(5)TMI 1292-CESTAT Chennai. M/s Keva Fragrances Pvt Ltd. Vs. CCE, Mumbai III- 2022-VIL-178-CESTAT-MUM-CE. 4. Shri, Tara Parakash Learned Assistant Commissioner(AR) appearing for Revenue relied on the impugned order. 5. We have carefully considered the submissions made by bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette : specified in sub-rule Where,- (A) Refund amount means the maximum refund that is admissible; (B) Net CENVAT credit means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of Rule 3, during the relevant period; (C) Export turnover of goods means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) Export turnover of services means the value of the export service calculated in the following manner, namely :- Export turnover of services = payments received during the relevant period for export services + export services whose provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to seek refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification. To put it differently, in terms of Rule 5 of CENVAT Credit Rules, 2004 when a manufacturer is exporting the final product continuously without payment of duty, the CENVAT Credit on inputs-input services would be accumulating to his CENVAT Credit records. Such manufacturer would be entitled to utilize the CENVAT Credit either for payment of excise duty on final products cleared for home consumption or for export on payment of duty or for payment of service tax on output service. If these contingencies are not forthcoming for any reason, then manufacturer/output service provider can seek refund as provided under Rule 5 read with relevant or extant notifications so issued. 5.3 In the present matter it is not in dispute that entire refund claim in question had been filed under Rule 5 of the rules, which is a beneficial provision for manufacturer who cleared final product or intermediate product for export without payment of duty under bond, etc. We find that in the present matter Ld. Commissioner rejected the refund claim on foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground on which refund claim was rejected that the assessee could have exported the goods on payment of duty utilizing credit is a wrong ground and a misdirected one. On a plain reading of Rule5 of the said Rules, it is clear that the assessee is entitled to claim refund on the accumulated credit where for any reason such adjustment is not possible . 5.5 Further Tribunal in CCE, Madras v. Indian Steel Rolling Mills Ltd., 1996 (86) E.L.T. 114 (Tri.), wherein denial of refund of credit accumulated due to exports on the ground that the assessee had also clearances for home consumption was over-ruled on the basis that the relevant notification envisaged granting of refund in such cases once in every quarter and that the appellants therein could not utilize the accumulated credit within a period of 3 months. 5.6 We also find that in para 6 of Navbharat Industries v. CCE, Mumbai reported in 2006 (199) E.L.T. 148 (Tri.-Mum.). (supra), the Tribunal observed as follows : We agree with the ld. Advocate appearing for the appellant that the provisions of Rule 5 relating to refund of Modvat credit accumulated in the records on account of their non-utilization for the exported goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
