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TMI Blog2009 (12) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... is only a remediable defect for which the refund claim cannot be denied when subsequently the customs certified copies of shipping bills were produced. A substantive claim cannot be denied for a minor procedural violation. In view of the above discussion, we are prima facie of the view that there is merit in the appellant’s plea that the refund order has been wrongly set aside by the CCE (Appeals). The stay petition is allowed. - E/1839/2009 - 1423/2009-EX(PB), - Dated:- 18-12-2009 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) Shri K.K. Anand, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T) (Oral)]. - This is an application for waiver of the requirement of pre-deposit of an amount of Rs. 39,87,276/- which has become payable by the Appellant in pursuance of order-in-appeal No. 26 (DK) CE/JPR-II/2009, dated 20-3-2009 passed by CCE (Appeals), Jaipur, for hearing of the appeal against this order and also stay on its recovery till the decision of the appeal. 1.1 The appellant manufacture and export yarn falling under chapter 55 of the Central Excise Tariff and also avail Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of 'net export' order. (3) Notification No. 41/07-S.T., dated 6-10-07 prescribes conditions for grant of refund of Service tax on services used for export of goods and Clause (e) of para 2 provides that the said goods shall be deemed to have been exported on the date on which the proper officer of customs makes an order permitting clearance and loading of the said goods for export under Section 51 of Customs Act, which is nothing but, the date of 'let export' order. The Appellant had relied on Clause (e) of para 2 of the Notification No. 41/07-S.T., dated 6-10-07 as part of the refund claim pertains to unutilised Service tax credit. (4) The grounds for setting the Assistant Commissioner's order sanctioning the refund claim, as mentioned in the impugned order-in-appeal are at the best, procedural irregularity, for which refund claim cannot be rejected. In this regard, reliance is placed on the Tribunal's order in case of Unique Pharmaceutical Laboratories v. CCE, Bombay reported in 1994 (74) E.L.T. - 925 (Tribunal) and also in case of Philco Exports v. CCE, New Delhi reported in 2009 (234) E.L.T. 568 (Tri. - Del.). (5) The Appellant in the memorandum of cross objection, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the ship containing the export goods leaves. 2.2.1 In view of the above, Shri Soni pleaded that this is not a case for waiver from the requirement of pre-deposit of the demand. 3. We have carefully considered the submissions from both the sides and perused the records. The Assistant Commissioner under Rule 5 of Cenvat Credit Rules, 2004 vide order dated 23-6-2008 had allowed cash refund of the accumulated credit amounting to Rs. 39,87,276/- in respect of clearances under ARE-1 ARE-2 for exports during July, 2007- September, 2007 period. The CCE (Appeals) has set aside the Assistant Commissioner's order and disallowed the refund on the following grounds - (1) The refund claim under Rule 5 of Cenvat Credit Rules, 2004 is governed by Notification No. 5/2006 - C.E. (N.T.), dated 14-3-06 issued under this rule according to which exporter (other than a 100% EOU) is required to file refund claim not more than once for any quarter in a calendar year. The goods in question were cleared for export during July, 2007- September, 2007 but in some cases, the date of export is not within the July - September, 2007 quarter. When the date of export is not within the quarter, the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of final products or output services, as the case may be, in the preceding quarter; or (b) the claim is filed by Export Oriented Unit, the claim for such refund may be submitted for each calendar month. 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction, - (a) the factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of customs to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds. 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under Rule 3 of the said rules against goods exported during the quarter or month to which the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit in respect of input or input services used in the manufacture of finished goods cleared for export under bond or letter of undertaking, and the same is not linked with the "date on which the ship or aircraft in which the export goods are loaded leaves India", which, as per Explanation (B) to Section 11B is the relevant date for counting the limitation period of one year prescribed for filing of the refund claim; and (c) While the refund claim can be filed in respect of goods cleared for export under bond/letter of undertaking during a quarter, it has to be filed only after export of the goods out of India, as the application for refund must be accompanied by shipping bills duly certified by customs officers that the goods have been exported. 5. In this case, out of 70 export consignments cleared for export during July - September, 2007 period, in 11 consignments, the vessel in which the goods had been loaded sailed in October, 2007. In other cases the vessel carrying the export goods left during July, 2007- September, 2007 period. Since the refund claim has been filed on 5-5-08, the same, in respect of all these export consignments, is within the prescribed limitation perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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