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TMI Blog2009 (10) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit balance, on account of export effected under Letter of Undertaking without payment of duty, under Rule 5 of Cenvat Credit Rules, 2004 for the periods from October, 2007 to December, 2007 and January, 2008 to March, 2008 respectively. 3.1 It was observed that second proviso to sub-rule (4) of Rule 3 of Cenvat Credit Rules, 2004 reads as under : 3. Cenvat credit. - (4) The Cenvat credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to Cenvat credit taken on Inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the Cenvat credit taken on capital goods if such capital goods are removed as such; or (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal Nos. 14 and 15/2009-2010 dated 20-4-2009 (hereinafter referred to as the impugned order) wherein it was held that the refund is not admissible since second proviso to Rule 3(4) of the Cenvat Credit Rules, 2004 is very clear for the units working under Notification No. 39/2001-C.E., dated 31-7-2001, as amended, are concerned and he further held that Rule 5A of the Cenvat Credit Rules, 2004 covers the unit availing benefit under Notification No. 20/2007-Central Excise dated 25-4-2007 and hence it is not applicable to the appellants. 4.1 Being aggrieved with the impugned order, the appellants preferred the present appeal on the grounds that that the goods exported by them under LUT (letter of undertaking) cannot be considered as exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the department; that Rule 3 of Cenvat Credit Rules, 2004, does not speak of refund at all; that Rule 3(4) of Cenvat credit Rules, prescribes the manner in which the Cenvat credit can be utilized; that Refund of Cenvat credit is covered by a separate Rule 5 of Cenvat Credit Rules, 2004 therefore it is not understood why the department should interprete Rule 3(4) of Cenvat Credit Rules, 2004 in such a way so as to defeat the very purpose of statutory Rule 5 of Cenvat Credit Rules, 2004; that allegation made in the notice is not at all correct and bad in law. Therefore, the denial of refund of un-utilised Cenvat credit, which is accumulated on account of raw material credit used in the manufacture of goods exported under bond/LUT, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rances under claim of rebate or for payment of Service tax; that no refund of credit is allowed if the manufacturer avails of draw back allowed under Customs Central Excise Duties Draw Back Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002 in respect of such duties; that appellant submits that they have neither availed drawback nor exported under claim of rebate during the relevant period; that their claim of refund is correct and justified, and denial of such a claim is gross injustice to the appellants and cannot sustain the test of law. 4.5 Before summing up they stated that the Rule 5A of Cenvat Credit Rules, 2004 is a special provision for North Eastern States of India. Under Rule 5A of Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jathalia of the appellant along with Shri R. Subramania, Advocate of M/s. Swami Associates, The representatives reiterated the submissions and also submitted a copy of Board letter F. No. 101/6/2009-CX. 3, dated 3-6-2009 for consideration. 6. I have carefully gone through the case records, appeal memorandum and the submissions made during the course of personal hearing. I find that since the issue pertains to rejection of their refund claim, there is no room for play for Section 35-F of Central Excise Act, 1944. 7. I find that there is no dispute as regards to fact that the appellants are working under Notification No. 39/2001-C.E., dated 31-7-2001, as amended, and have cleared the goods manufactured by them under Letter of Undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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