2015 (4) TMI 453 - AT - Central Excise

Refund of unutilized accumulated CENVAT Credit - Duty drawback claim - Held that - So far as the claim of drawback is concerned, there is no material evidence on record to appreciate that export of the appellant were supported by drawback claim. There was no enquiry done with the customs authority. Learned counsel in all fairness states that if any enquiry is done no material showing the export under drawback claim can be discovered by Revenue. Therefore, as an abundant caution, the Authority for his satisfaction may cause verification from the Customs authorities as to whether export was made by the appellant under drawback scheme. If there was claim of drawback of service tax and such drawback has been paid, refund of cenvat credit of service tax shall not be allowed. It may be stated that when the drawback on service tax was not extended before 13.7.2006, claim thereof cannot be presumed. When there is no provision to disallow refund of the cenvat credit pertaining to service tax remaining unutilized and carried forward, the Hon'ble High Court of Bombay has held in the 2011 (2) TMI 503 - BOMBAY HIGH COURT that in the absence of any distinction in Rule 5 prior to 13.2.2006, appellant cannot be disentitled to claim of refund thereof. Therefore entire carried forward credit remaining unutilized should be refunded. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
- Claim of refund of accumulated cenvat credit under Rule 5 of Cenvat Credit Rules, 2004.
- Disallowance of refund claim by Revenue based on various grounds.
- Allegation of double claim by the Appellant.
- Verification of export under drawback scheme and execution of bond.
- Disentitlement to refund due to debit notes for availed services.

Analysis:

1. The Appellant, a manufacturer and exporter of garments, sought a refund of accumulated cenvat credit under Rule 5 of Cenvat Credit Rules, 2004, for the period March 2006 to July 2006. The Revenue disallowed the claim citing reasons such as double claiming, inadmissibility of credit prior to June 2006, lack of bond execution for exports, and availing credits based on debit notes.

2. The Appellant clarified that they did not claim drawback on service tax before it became permissible, hence no bond was required for exports. They argued that the accumulated credits were genuine and verifiable, following a decision by the Hon'ble Bombay High Court, asserting the right to refund as taxes were not exported, only goods.

3. The Appellant emphasized that all service tax payments were verifiable from invoices, not debit notes, making them eligible for refund under Rule 5 of CCR 2004. They contended that the absence of a provision disallowing refunds for unutilized service tax credits supported their claim for refund.

4. The Revenue alleged a double claim by the Appellant for different amounts in June and July 2006, failure to produce drawback claim evidence, inadmissibility of cenvat credit carry forward, and disentitlement due to debit notes. However, the Tribunal found no evidence of repetitive claims and directed verification of exports under drawback scheme.

5. The Tribunal held that in the absence of a provision disallowing refunds for unutilized service tax credits, the Appellant was entitled to a refund as per the decision of the Hon'ble High Court of Bombay. It dismissed the Revenue's contentions regarding repetitive claims and the necessity of bond execution for exports not covered by drawback claims.

6. The Tribunal instructed the adjudicating authority to provide the Appellant a fair hearing within two months of application submission for the date of hearing. Emphasizing the importance of encouraging exports, it directed the authority to expedite the process and pass appropriate orders promptly to resolve the appeals.

7. Ultimately, both appeals were remanded to the adjudicating authority for further consideration and appropriate orders based on the clarified legal positions and factual verification.