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TMI Blog2010 (2) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... s drawback by under Foreign Trade Policy – Held that: - refund of Cenvat credit which could not be utilized. - E/964/2009 - A/186/2010-WZB/AHD - Dated:- 24-2-2010 - S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J)<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /> Shri S.K. Mall, SDR, for the Appellant. Shri J.C. Patel, Advocate, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Commissioner (Appeals) in his order has failed to consider the fact that respondents are entitled to drawback in terms of para 8.3.6 of Chapter 8 of Foreign Trade Policy handbook of procedure. According to this, the Customs and Central Excise Duty Drawback Rules, 1995 shall apply mutatis mutandis to deemed exports. Since Proviso to Rule 5 of Cenvat Credit Rules, 2004 provides that refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd which reads as under : “Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the Revenue. As rightly pointed out by the learned advocate, the proviso itself makes it clear that the restriction is applicable only in respect of Cenvat credit claimed as refund and is not applicable to terminal excise duty paid as drawback by under Foreign Trade Policy. Further, the CBEC Circular also supports the case of the appellant and the relevant paragraph is reproduced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y doubt that appellants were entitled for refund of Cenvat credit which could not be utilized by them. As regards Chartered Accountant certificate, we find that the Original Adjudicating Authority has verified the same before sanctioning refund and therefore this objection has no relevance. Further, the ground of non production of proof of export and availment of Cenvat credit also are not relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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