9911796707
TMI Blog2011 (4) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to the adjudicating authority to verify the records produce to satisfy assessee's eligiblity for the refund under Rule 5 of the Cenvat Credit Rules read with Notification 05/2006-CE (NT) - in favour of assessee by way of remand. - 2862 of 2009-SM - 267/2011-SM(BR)(PB) - Dated:- 27-4-2011 - Mr. Mathew John, J. Appeared for Appellant : Shri Z.U. Alvi, Advocate Appeared for Respondent : Ms. Rimjhim Prasad, SDR Per Mathew John: In this case, the Appellant had filed a refund claim on 17.11.08 claiming cash refund of Cenvat credit of duty paid, under the Additional Duties of Excise (Textile and Textile Articles) Act, 1978, on raw material procured by the Appellant and used in manufacture of goods exported. It is relevant to note that ADE (T TA) was abolished with effect from 9.7.04 vide Notification No. 31/2004-CE dated 9.7.2004. The claim was made on the ground that the Appellant had made exports in the past roughly to the extent of 13% of the value of their gross production but was not making any claim for refund of Cenvat credit accumulated on account of export, in terms of provisions of Rule 5 of Cenvat Credit Rules, because the Appellant was able ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which is altogether absent in the instant claim and hence sanctioned erroneously. (iii) The refund is restricted to the extent of ratio of export turnover to the total turnover for the given period to which claim relates. However, this limitation is also not taken into account by the authority while sanctioning the claim to determine the genuine amount of refund. (iv) The sanctioning authority has also failed to obtain the statutory documents required in relation to said refund claim. 5. The party furnished cross-objection to the Appeal stating the following points:- (a) The appeal filed and copy forwarded to respondent is not signed by the Assistant Commissioner. Verification of appeal has also not been signed and hence appeal liable to be dismissed of its initial stage. (b) The department s objection raised in appeal that refund was not made on the prescribed application form was never raised by the refund Application dated 17.11.08 was accepted by the authority without any objection. Also if this mistake was altogether there in this basis alone the claim does not merit rejection as the mistake has to be treated as procedural one. (c) The respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: 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 such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilized for payment of service tax on any output service. Explanation: For the purposes of this rule, the words 'output service which is exported' means the output service exported in accordance with the Export of Services Rules, 2005. Notification No. 05/2006 - Central Excise (N.T.) G.S.R. (E) In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules ), and in supercession of the notification of the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period ). 5. The refund of unutilised input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates i.e. Maximum refund = Total CENVAT credit taken on input services during the given period W export turnover w Total turnover Illustration: If total credit taken on input services for a quarter = Rs. 100 Export turnover during the quarter = Rs 250 Total Turnover during the quarter = Rs 500 Refund of input service credit under Rule 5 of the CENVAT Credit Rule, during the quarter # 100*250/500 i.e. Rs 50 Explanation: For the purposes of condition no.5,- 1. Export turnover shall mean the sum total of the value of final products and output services exported during the given period in respect of which the exporter claims the facility of refund under this rule. 2. Total turnover means the sum total of the value of,- (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold during the given ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
