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TMI Blog2011 (1) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 9 of Central Excise (No. 2) Rules, 2001 intimating the Deputy Commissioner that they are availing full exemption from payment of whole of Central Excise duty under Notification No. 30/04-C.E., dated 9-7-2004. They cleared the goods for home consumption as well as exports without payment of duty of excise by availing exemption under Notification No. 30/04. The rate of drawback on Texturised Polyester Filament yarn up to 31-8-2008 was 16%, therefore, the exports were made under drawback scheme up to 31-8-2008. However, with effect from 1-9-2008, the drawback rate on Texturised Polyester Filament Yarn was reduced to 2% of FOB value and hence with effect from 1-9-2008, the exports were made under DEPB scheme. The appellant obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit from 9-10-2010 on the inputs and inputs contained in final products in stock as on 9-10-2010. Therefore, there is no question of allowing refund of Cenvat Credit on the inputs used in the manufacture of the goods exported prior to 9-10-2010. The appeal filed by the appellants against this order was also rejected in the impugned order. 2. Learned advocate on behalf of the appellants submitted that Central Excise registration is not necessary for availing cenvat credit since it is the manufacturer who is eligible for cenvat credit as per Rule 3 of Cenvat Credit Rules, 2004. He also submitted that there is no time limit for taking cenvat credit and therefore action of taking credit on 9-10-2009 on the inputs used in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rebate. As regards the goods manufactured for domestic consumption, they could have reversed the credit as per the formula prescribed by the Government or reverse the credit before the clearance of the goods. However, this was not followed by the appellant because of which the dispute has arisen. 5. The first issue is whether the appellant was eligible for the cenvat credit when they have not taken registration and the cenvat credit taken by them for the period 1-11-2008 to October 2009 can be allowed. For this purpose, the appellant had relied upon the decision of the Tribunal in the case of J.R. Herbal Care India Limited v. CCE, Noida - 2010 (253) E.L.T. 321 (Tri.- Del.). In this case the appellant had received the capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een denied. This issue was considered by the Hon'ble High Court of Himachal Pradesh in the case of CCE v. Drish Shoes Limited - 2010 (254) E.L.T. 417 (HP) and the Hon'ble High Court held that refund of input credit is admissible when exempted goods are exported without execution of bond. Similar was the view taken by the Hon'ble Bombay High Court in the case of Repro India Limited v. UOI [2009 (235) E.L.T. 614 (Bom.)]. Therefore, the conclusion in the impugned order that appellant is not eligible for exemption since the goods have not been exported under bond or LUT, cannot be sustained. 7. It was also submitted that execution of bond is only a procedural lapse and its violation should not disentitle the appellant from taking of credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two sample consignments, it has been certified by the Central Excise Officers - "further verified that benefit of cenvat credit under Cenvat Credit Rules, 2002 has been availed". This shows that appellants did have an intention to avail cenvat credit and it was only a clerical lapse due to which failure to obtain registration and make proper claims has arisen. Further, it is also to be noted that refund were made only after obtaining registration. In fact, it is the appellants who have suffered the loss because of the delay in obtaining registration and not exporting the goods under bond, even though appellant had taken a decision to avail cenvat credit and indicated the same at the time of removal. It is strange to note that Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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