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TMI Blog2024 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case are that the appellant is engaged in the manufacture of Automobile AU Bearings falling under Chapter 84 of the CETA, 1985. They were supplying these bearings to the export warehouse owned by M/s. Nisson Motors India Pvt. Ltd. who were registered under Rule 20 of Central Excise Rules, 2002 (C. Ex. Rules, 2002). The appellant filed four refund claims in respect of the unutilized CENVAT credit under Rule 5 of the CCR, 2004 pertaining to four quarters from March 2010 to December 2010. A Show Cause Notice was issued to the appellant which was in relation to the quarter pertaining to January 2010 to March 2010 proposing to reject the said refund claims mainly on the ground that physical export is essential for a refund under Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... automobile bearings falling under Central Excise Tariff heading 84821011, cleared by them to M/s Nissan Motors Limited's warehouse, established under Rule 20 of the Central Excise Rules, 2002. These were subsequently exported as such and hence the condition of physical export is satisfied in this case. Further, as per Circular No. 581/18/2001 CX Dt. 29.06.2001, it has been clarified that refund under Rule 5 of the CCR, 2004 is admissible for supplies to export warehouses also. Subsequently, the same has been incorporated in chapter 10 of the CBEC's Supplementary Instructions, 2005 as stated at Para 5.4 thereof. The Ld. Counsel stated that in the impugned order, reliance has been placed on the decision of the Hon'ble Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and hence not sustainable. Further their eligibility to avail CENVAT credit has not at all been questioned and no proceedings have been taken by the department to deny/recover the credit availed by the appellant and such eligibility cannot be questioned while deciding the refund application filed by the appellant. In this connection, the appellant wishes to rely on the following decisions. (a) Shree Krishna Paper Mills & Ind. Ltd. Vs CCE-2019 (365) ELT 594 Tri- Chan. (b) Commissioner of Service Tax, Mumbai Vs Exxon Mobile Co. India Pvt. Ltd. 2015(37) S.T.R.591 (Tri-Mumbai) (c) U.K Paints (India) Pvt. Ltd. Vs Commissioner of Central Excise, Delhi 2004(170) E.L.T.280 (Tri. Del) Further, the Ld. Counsel submit that as per para 3.4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 2004. 5. The Commissioner Appeals in the impugned order has examined in the detail the issue regarding the appellant not having engaged in any manufacturing activity to claim refund under Rule 5 of CCR 2004. However, this issue was not a part of the SCN issued to the appellant and could not have been examined in the OIO and the subsequent First Appellate Order. I find that in UMC Technologies Pvt. Ltd. Vs Food Corporation of India and Anr. [AIR 2021 SUPREME COURT 166 / AIRONLINE 2020 SC 884], the Hon'ble Supreme Court had observed that any action travelling beyond the boundaries of a notice is impermissible: '13. At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to gather the intent and effect of its different clauses, should be applied. I find that in the case of a beneficial provision for the export of goods the law should be read liberally. When dealing with a complex economic policy a pragmatic and beneficial solution is to be adopted. As per Circular No. 581/18/2001 CX Dt. 29.06.2001, it has been clarified that refund under Rule 5 of the CCR, 2004 is admissible for supplies to export warehouses also. In such a situation when the ultimate export of the goods are not contested, the refund should be allowed to a DTA unit, even if the physical export was not done by the unit itself, but by the exporter who is registered under Rule 20 of C. Ex. Rules, 2002 and is availing a mechanism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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