2008 (3) TMI 97 - AT - Central Excise

Export of fabrics refund sought of accumulated cenvat credit which count not be utilized in payment of duty of goods cleared to home market - when the manufacturer exports his finished products under bond and is not in a position to utilize the credit for payment of duty on clearances for home consumption etc the manufacturer is entitled to receive refund of the input credit periodically - impugned order is set aside and this appeal of assessee for refund is allowed

Summary

Issues:
Claim for refund of accumulated cenvat credit under Rule 5 of Cenvat Credit Rules, 2002 (CCR) for exports; Interpretation of Notification No. 11/02-CE(NT) dated 01.03.02 regarding refund eligibility criteria; Refund entitlement for manufacturer exporters unable to utilize accumulated input credit for clearances to home market; Comparison with Tribunal decision in Navbharat Industries vs. CCE, Mumbai; Admissibility of refund under Rule 5 of CCR and relevant notifications.

Analysis:
The appeal involved a claim for refund of accumulated cenvat credit by M/s. Chandra Cotton Fabrics (CCF) for the months of April and May, 2004, relating to the export of fabrics. The Commissioner (Appeals) upheld the rejection of the refund claim based on the interpretation of Notification No. 11/02-CE(NT) by the lower authorities. The authorities contended that since exports could be made on payment of duty under a claim for rebate, the manufacturer could not be considered unable to utilize the credit of the duty on inputs allowed under Rule 3 of CCR against goods exported during the relevant period.

The Ld. Counsel for the appellants argued that the condition to allow the refund, as per Rule 5 of CCR, applies to manufacturer exporters unable to export goods on payment of duty. The authorities' reading of the notification was deemed erroneous as it did not bar refund of accumulated credit for manufacturers unable to utilize the credit for clearances for home consumption. Citing a Tribunal decision in Navbharat Industries vs. CCE, Mumbai, it was emphasized that refund of accumulated input credit was a substantive right of the citizen, especially when the credit could not be adjusted for any reason.

Upon careful consideration of the submissions, the Member (T) analyzed Rule 5 of CCR and the relevant Notification No. 11/02-CE(NT). It was concluded that a manufacturer exporting most or all of their production and lacking clearances to the home market could not utilize the accumulated credit for duty payment. The statute explicitly provided for the grant of refund in such circumstances, contrary to the stand taken by the lower authorities. Referring to the Tribunal's observation in Navbharat Industries, the Member (T) highlighted that the refund of accumulated modvat credit could not be denied as it was a substantive right of the citizen, as long as the condition of non-utilization of credit was met.

In light of the above analysis and the clear provisions of Rule 5 of CCR, the impugned order was set aside, and the appeal by M/s. Chandra Cotton Fabrics (CCF) was allowed, granting them the refund of the input credit periodically.