2017 (9) TMI 1062 - AT - Central Excise

Refund of unutilised CENVAT credit - denial on the ground that the assessee had not exported the OTS Cans themselves - Held that - there is no dispute that the assessee manufactured and cleared OTS cans under the cover of ARE-3 and the Bond furnished by the fruit pulp manufacturers for export of goods - Rule 5 of CCR, 2004 allowed refund of Cenvat Credit, where the input or input service is used in the manufacture of final product which is cleared for export under Bond. In the present case the OTS cans were cleared under Bond to the fruit pulp manufacturers, who, in turn exported the goods. In any event, it is required to be verified from the records of the export of the goods - the matter is remanded to the adjudicating authority to decide afresh - appeal allowed by way of remand.

Summary

Issues:
Refund claim denial under Rule 5 of Cenvat Credit Rules, 2004 for unutilized credit used in the manufacture of export goods.

Analysis:
The judgment involves two appeals - one filed by the assessee against the denial of a refund claim under Rule 5 of Cenvat Credit Rules, 2004, and the other filed by the Revenue against the order allowing the assessee's appeal for a subsequent period. The common issue in both appeals is the denial of the refund claim. The assessee supplied OTS cans to fruit pulp manufacturers under a bond without payment of duty as per a specific notification. The assessee filed refund claims for unutilized credit used in the manufacture of export goods. The Commissioner(Appeals) upheld the denial of the refund claim for one period but allowed it for another. Both parties appealed.

The consultant for the assessee argued that as per the relevant notification, once the goods are received by the exporter, they are considered exported. The consultant contended that the assessee is entitled to a refund if they bore the duty incidence. On the other hand, the Revenue argued that since the assessee did not export the OTS cans themselves, they are not eligible for a refund under Rule 5 of Cenvat Credit Rules. However, it was acknowledged that the OTS cans were cleared under bond to the fruit pulp manufacturers who then exported the goods. The Tribunal referred to a previous case where it was held that goods supplied to a 100% EOU that physically exported the goods are entitled to a refund claim. The Tribunal emphasized the legislative intent to promote exports and not export taxes. The case was remanded to the adjudicating authority to verify if the goods supplied to the EOU were physically exported, allowing the refund claim if proven.

In conclusion, the Tribunal remanded the matter to the adjudicating authority for fresh consideration in light of the previous decision and ordered a new decision to be made in accordance with the law. Both parties were granted the opportunity to present evidence, and all issues were left open for further examination. Both appeals were allowed by way of remand.