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TMI Blog2011 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... hri K.K. Anand, Advocate, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts leading to filing of these appeals by the Revenue are, in brief, as under :- 1.1 The respondent are manufacturers of spun yarn of polyester/Acrylic/viscose staple fibre, which is chargeable to central excise duty. They also avail the facility of Cenvat credit of duty paid on inputs capital goods under the provisions of Cenvat Credit Rules, 2004. They took Cenvat Credit of duty paid on polyester, Acrylic Viscose Staple fibres, furnace oil, paper cones corrugated boxes etc. and used the same in the manufacture of Spun yarn which was exported under bond without payment of duty, but under Advance Licence Scheme. They filed refund claims for cash refund of accumulated Cenvat credit on account of exports under bond, under Rule 5 of the Cenvat Credit Rules, 2004, in respect of which the jurisdictional Deputy Commissioner issued orders in original dated 26-10-2005, 21-10-2005 and 28-9-2005 by which he rejected the refund claims of Rs. 77,325/- Rs. 14,11,577/- and Rs. 8,43,303/- respectively on the ground that the same are of the cenvat credit accumulated on account of exports u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d benefit of Advance Licence can not be availed together; and (c) since in this case the goods have been exported under advance licence schemes of notification No. 43/2002-Cus. and 93/04-Cus, the cash refund under Rule 5 of the Cenvat Credit Rules, 2004 is not permissible. 2.2 Shri K.K. Anand, Advocate, the learned Counsel for the respondent, defending the impugned order pleaded that in Rule 5 of the Cenvat Credit Rules, 2004, there is provision for disallowing cash refund of cenvat credit accumulated due to exports, only if the exports have been made under Drawback claim or input duty rebate has been claimed under Rule 18 of the Central Excise Rules, 2002, that there is no bar on cash refund under Rule 5 of the Cenvat Credit Rules, 2004, of the Cenvat credit accumulated due to exports under bond, if the exports have been made under Advance Licence Scheme, that in this regard, he relies upon Tribunal s decisions in cases of Commissioner of Central Excise, Jaipur-II v. Bhilwara Spinners Ltd. reported in 2008 (226) E.L.T. 222 (Tribunal-Delhi) and Ispat Industries Ltd. v. CCE, Nagpur reported in 2006 (195) E.L.T. 37 (Tribunal-Mumbai), that under advance licence scheme, an exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications provides that the export obligation, as specified in the said licences, is to be discharged within the stipulated period by exporting resultant product manufactured in India specified in the Advance Licence, in respect of which the facility under Rule 18 or Rule 19(2) of the Central Excise Rules, 2002 has not been availed of. According to the Revenue, the provisions of Rule 18 of the Central Excise Rules, 2002 and of Rule 5 of the Cenvat Credit Rules, 2004 are pari materia and therefore the cash refund of unutilised Cenvat Credit accumulated in respect of the goods exported under the bond without payment of duty and advance licence benefit cannot be availed together. 5. Rule 5 of the Cenvat Credit Rules, 2004 reads as under :- Rule 5. Refund of Cenvat Credit. Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilised by the manufacturer or provider of output service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme under notification No. 43/02-Cus. and 93/04-Cus. is available subject to condition that the facility of input duty rebate under Rule 18 or acquiring duty free inputs under Rule 19(2) of the Central Excise Rules, 2002 has not been availed, unless the condition of non-availment of advance licence benefit is mentioned in Rule 5 of the Cenvat Credit Rules, 2004, the same cannot be read into it. Moreover, when the exemption notifications Nos. 43/2002-Cus. or 93/2004-Cus. in respect of the duty free imports made against Advance Licence issued against the exports made under Advance Licence Scheme, mention that for the benefit of the exemption under these notifications, the export obligations in respect of the Advance Licence should be discharged by export of finished products without availing the facility under Rule 18 or Rule 19(2) of the Central Excise Rules, 2002 and of these conditions are breached, as according to Department, facility of input duty rebate under Rule 18 of Central Excise Rules, 2002 is equivalent to cash refund of accumulated cenvat credit under Rule 5 of Cenvat Credit Rules, 2004, then it is the benefit of the duty exemption under these notifications in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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