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TMI Blog2009 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Commissioner of Customs (Appeals), Bangalore. As these appeals involve a common question of law and fact, we are passing a single order. The details are as follows: Sl.No. Appeal No. Name of the party Refund Amount 1. 14/2008 M/s. Fibres & Fabrics International Pvt. Ltd. Rs. 37,27,783/- 2. 15/2008 M/s. Fibres & Fabrics International Pvt. Ltd. Rs. 1,39,028/- 3. 16/2008 M/s. Jeans Knit Pvt. Ltd. Bangalore Rs. 11,24,591/- 4. 17/2008 M/s. Jeans Knit Pvt. Ltd. Bangalore Rs. 8,40,288/- 2. We heard both sides. 3. The appellants utilized Cenvat credit on input services during the relevant period. Since, they are a 100% EOU and exported all their items, they were not in a position to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 16 of the Cenvat Credit Rules, 2004 the benefit of refund of Cenvat Credit on input service has to be extended even prior to introduction of Notification No. 5/2006. It was also stated that in the appellants' own case, the Commissioner of Central Excise (Appeals) in remand Order-in-Appeal Nos. 136-137/2006-CE dated 29.11.2006 specifically at para 10 had recorded a finding, which is as follows; "I find that Notification No. 5/2006-CE (NT) dated 14.03.2006 has since been issued and therefore refund of un-utilized input service tax credit can be considered subject to the conditions prescribed there under. Mere reason of non amendment to Notification No. 11/2002-CE (NT) dt. 01.03.2002 cannot taken away the benefit allowed in the main rule." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner (Appeals) and emphasized the point that Rule 4 of Service Tax Credit Rules, 2002 specifically provided that refund of service tax credit availed on input service shall not be allowed under any circumstance. Then, she took us to Rule 5, which was earlier providing only refund of Cenvat Credit on input, which has been brought out in the impugned order. Later, the Cenvat Credit Rules, 2002 and Service Tax Credit Rules, 2002 were merged into Cenvat Credit Rules, 2004 by including input services for the purpose of credit as well as refund with effect from 10.09.2004. In terms of the Rule position as on 10.09.2004, a refund of input or input services would be permissible. The un-utilized credit could be given in as cash. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feguards, conditions and limitations, as may be specified, by the Central Government, by notification: Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules. 2002, in respect of such duty." 8.1 Even though the rule allows it, at that time the relevant Notification was 11/2002 did not provide the refund. The said notification is actually (i) prescribing safeguards and limitations issued under Erstwhile Rule 5 or Cenvat Credit Rules, 2002. But, that notification was superseded by another Notification 5/2006 dated 14.03.2006 providing refund of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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