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TMI Blog2024 (1) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... he services. (iii) The appellant exported the goods without bond or letter of undertaking and therefore not eligible for refund. 1.2 The relevant facts of the case are that the appellant first time on 20.03.20 applied for service tax registration on being realized that the appellant was liable to pay service tax under reverse charge mechanism on software services. On 30.08.2013 the appellant preferred the refund application for unutilized amount of cenvat credit on GTA Services, Banking and Financial Services and clearing and forwarding services used in the exported goods during the period 2009-2010 to 2011-2012 upto (31.07.2013). While filing the refund claim , the appellant claimed refund of unutilized cenvat credit proportionately to export turnover. The Assistant Commissioner vide order dated 27.11.2013 rejected the refund claim of unutilized cenvat credit of input services. 1.3 On 22.12.2014 the appellant again filed the refund claim by curing defects as pointed out by the learned Assistant Commissioner. The appellant placed reliance upon various decisions to show that the appellant was eligible for refund claim of unutilized cenvat credit for export of goods. On 20.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority though given some observation but held that the refund claim is not admissible. However, the refund claim was returned back to the appellant, this approach of the Assistant Commissioner is clear in violation of principle of natural justice in as much as neither any show cause notice was issued nor an adjudication process was carried out. 4.1 Moreover, the Learned Commissioner (Appeals) though passed an order on merit. However, it is observed that on all the points on which the refund claim was denied has been addressed by various courts and Tribunals in various judgments cited by the appellant. From the impugned order passed by the learned Commissioner (Appeals), it is found that learned commissioner appeal has observed that the appellant have taken Cenvat Credit without having registration. In this regard, we find that availment of Cenvat Credit and / or for refund under Rule 5 of Cenvat Credit Rules registration is not mandatory as per the following judgments : Well Known Polyesters Ltd. Vs. Commissioner of C. Ex., Vapi - 2011 (267) ELT 221 (Tr. Ahmd) 5. The first issue is whether the appellant was eligible for the cenvat credit when they have not taken regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . mPortal Solutions India (P) Ltd Vs CST - MANU/KA/2362/2011 b. Mafatial Ind Ltd Vs CST - 2020 (43) GSTL 562 (T) c. Imagination Technologies India P. Ltd. Vs. Commr. of C. Ex., MANU/CM/0236/2011" In view of the above judgment it is settled that Cenvat Credit and /or refund thereof cannot be denied merely because the claimant has not taken the registration of Service Tax/ Central Excise. The other issue dealt with by the Commissioner (Appeals) is that the refund of input duty /input service tax when appellant's goods which was exported is exempted from Central Excise Duty and Service Tax and the export of the goods was made without bond /LUT. We find that this issue is also settled in various Judgments as follows :- Repro India Ltd. Vs. Union of India - 2009 (235) ELT 614 (Bom.) 7. We may also consider the provisions of Rule 6 of the Cenvat Credit Rules, 2004. The relevant portion of Rule 6(6)(v) reads as under :- "(6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either - (i)....... (ii) ..... (iii) ..... (iv) ..... (v) cleared for export under bond in terms of provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported goods are exempted or otherwise." It would thus appear that the direction of the respondent No. 2 to the petitioners to pay 10% even though printed books were exported is not legally sustainable. It is only in the event the petitioners does not export the printed goods and do not maintain the account as contemplated by rule 6(2) the petitioner would be required to pay 10% on the sale price of the printed books not so exported. Even though Rule 6(1) of the Cenvat Credit Rules, 2004 provides that no Cenvat credit will be available in respect of the inputs used in the manufacture of exempted products, Rule 6(6)(v) of the Cenvat Credit Rules creates an exemption inter alia in respect of the excisable goods removed without payment of duty for export under bond in terms of Central Excise Rules, 2002. Considering the language of Rule 6(6)(v) of the Cenvat Credit Rules, 2004 the petitioners are entitled to avail Cenvat credit in respect of the inputs used in the manufacture of the final products being exported irrespective of the fact that the final products are otherwise exempt. 8. The Cenvat credit is allowed n (sic) the duty paid on inputs to mitigate the effect of double t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holly exempt by Notification dated 31st March, 2003. Rule 6(6)(iii) relates to goods supplied to a unit located in Electronic Hardware Technology Park or Software Technology Park. Such supplies are exempt from duty by Notification dated 31st March, 2003. Rule 6(6)(iv) relates to supplies to United Nations or an international organisation for their official use. These are exempt by Notification No. 108/95. Rule 6(6)(v) relates to export under bond. Rule 6(6)(vi) relates to gold or silver arising during refining of copper. These are exempt from payment of duty by Notification No. 5/2006-C.E., dated 1st March, 2006. It would thus be clear that all the clauses of Rule 6(6) are enacted only to deal with the situation when the final products are exempt from payment of duty. If a final product is not exempted from duty, Rule 6(1) is not attracted at all and hence Rule 6(6) is unnecessary. Rule 6(6) is precisely needed only when the final products are exempt from payment of duty. In this context the Revenue itself has accepted that under the provisions of Cenvat Credit Rules, 2002 there were provisions for removal of exempted goods under bond but the same was not available with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6(4) of the Cenvat Credit Rules under Cenvat Credit Rules, 2002 as well as under the Cenvat Credit Rules, 2004 remains the same. As noted earlier the object and purpose of Rule 6(6) of Cenvat Credit Rules, 2004 is to promote the policy of the Government that the benefit of duty paid on input is available as credit in respect of certain exempted goods as well as the exempted goods exported under bond. The minor change in the wordings of Rule 6(6) of the Cenvat Credit Rules, 2004 by using the term "excisable goods" instead of exempted goods is that the term 'exempted goods' may not cover the dutiable goods which are exported under bond. Therefore, in order to widen and cover both dutiable and exempted goods exported under bond, Rule 6(6) of Cenvat Credit Rules, 2004 uses the expression "excisable goods". As an illustration, if a car which is dutiable is exported under bond without payment of duty there may be doubt as to whether credit on the inputs will be available, since the car is cleared without payment of duty under Rule 6(5) of Cenvat Credit Rules, 2002. It could be argued that it covers only the exempted goods exported and not dutiable goods exported. In order to cover su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tuffropes Private Limited v. CCE, Vapi - 2009 (233) E.L.T. 544 (Tri.-Ahmd.), this Tribunal had taken a view that exempted goods can also be cleared under bond. Further, in the case of Commissioner v. Suncity Alloys Pvt. Limited - 2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.), the Hon'ble High Court of Rajasthan held that exempted goods cleared for export on payment of duty, manufacturer can claim rebate. All these decisions would show that procedural requirements should not come in the way of legitimate claim for refund. The Commissioner of Central Excise Drish Shoes Limited - 2010 (254) E.L.T. 417 (HP) 8. It is not in dispute that the respondent is engaged in the manufacture of finished leather and that it had exported manufactured leather as claimed by it. The only question is whether under the CENVAT Credit Rules of 2002 or 2004, it is entitled to the credit/refund of CENVAT paid on inputs, like chemicals etc. purchased by it, to convert raw leather into finished leather. 9. Rule 3 of the CENVAT Credit Rules, 2004, as also Rule 3 of CENVAT Credit Rules, 2002, which have been repealed by the Rules of 2004, provide for credit of CENVAT paid by a manufacture on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of 2002, exception applies to all excisable goods, irrespective of the fact whether they are exempted or subject to levy of duty. 13. Assistant Commissioner file, rejecting the claim of the respondent, held that since the finished leather exported by the respondent was exempt from duty, no bond or Letter of Undertaking was required to be furnished and the furnishing of bond by the respondent was only a device to claim CENVAT credit under the CENVAT Credit Rules. He took the view that Rule 6(1) clearly stated that CENVAT credit was not permissible in respect of exempted goods. 14. The Commissioner (Appeals), while accepting the appeal and reversing the order of Assistant Commissioner, held that Assistant Commissioner had not taken holistic view of the matter and allowed himself to be misled by reading only a few provisions. He held that the object of exception clause contained in Rule 6, as noticed hereinabove, was to promote the export of goods manufactured in India. He observed that in any case, exception clause of Rule 6 allowed the credit/refund of CENVAT paid on inputs in the manufacture of excisable products, exported under a bond. 15. The Tribunal has upheld the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2, it is clear from a bare reading of Rule 5 of CENVAT Credit Rules, 2004 that a manufacturer, who exports the final products which are exempt from duty, can claim refund of CENVAT. So, this question is also answered against the appellant. 22. view of the aforesaid answers to the questions of law, appeal is dismissed. Commissioner of Central Excise Vs. Jolly Board Ltd. "8. It would be clear that in the decision of the Himachal Pradesh High Court, the judgment of this Court in case of Repro India Ltd. v. Union of India reported in 2009 (235) E.L.T. 614 (Bom.) is also relied, wherein it is held that expression "excisable goods" is wider than the expression "exempted goods" as it includes both dutiable and also exempted goods. 9. It is also submitted by the learned counsel Mr. Ladda that the judgment of the Himachal Pradesh High Court in case of Commissioner of Central Excise v. Drish Shoes Ltd. (supra) is confirmed by the Apex Court in Appeal No. 2887/2012. The learned counsel submits that the judgment in the case of Commissioner of Central Excise v. Drish Shoes Ltd. (supra) may not assist the assesee as the said judgment does not consider execution of bond for export of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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