9911796707
TMI Blog2012 (11) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... resh in view of the decision of the in the case of Shell India Markets Pvt. Ltd. (supra). - E/101, 102 & 947/2011-Mum. & E/1439 & 1440/2012-Mum. - A/848-852/2012-WZB/C-II(EB) - Dated:- 19-10-2012 - Mr. S.S. Kang, And Mr. Sahab Singh, JJ. Appearance Shri M.H. Patil, Advocate for Appellant Shri Navneet Additional Commissioner (A.R) for respondent Per : Sahab Singh These are five appeals filed by M/s. Bombay Dyeing Manufacturing Co. Ltd. (hereinafter referred to as appellant) against the orders-in-appeal as per details given below: Appeal No. Period Commissioner (A) Date E/102/2011 Oct. 2008 to Dec. 2008 YDB/669-670/RGD/2010 Dated 11/10/2010 E/101/2011 Jan 2009 to March 2009 YDB/669-670/RGD/2010 Dated 11/10/2010 E/947/2011 April 2009 to June 2009 YDB/208/RGD/2011 Dated 10/03/2011 E/1440/2012 Jan.2010 to March 2010 BC/101/RGD/2012-13 Dated 19/6/2012 E/1439/2012 April 2010 to June 2010 BC/102/RGD/12-13 Dated 19/06/2012 Since issue involved is all these appeals is same, all appeals are taken up together includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence the availment of refund for exports under DEEC/Advance Authorization Scheme would tantamount to refund being availed on exempted inputs products; (v) In respect of final goods produced using duty free inputs procured under Advance License/Authorization, there is compulsory obligation upon the exporter to export them and exporter cannot use the inputs for producing the products cleared for home consumption. In case the manufacturer exports in advance and then imports duty free goods against such goods, then also on such export goods, refund cannot be claimed under Rule 5 of the Cenvat Credit Rules, 2004, as inputs are allowed to be imported duty free only because the goods are exported. (vi) Board vide Circular4 No. 26/2002-Cus dated 16.5.2002 and 54/2002 dated 27.08.2002 had clarified that benefit of DEPB Scheme is only available if inputs have gone into the manufacture of export products and have suffered duty. The same principles applied to the present case. 5. In respect of the claim mentioned at Serial No.5 it was rejected by the Assistant Commissioner and the appellant has filed an appeal before the Commissioner of Central Excise (Appeals) claiming that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore there will not be any double benefit in claiming refund under Rule 5 and exporting the goods under DEEC Scheme. He further submitted that the use of inputs imported under DEEC Scheme was specifically covered under para 4.1.5 of the Foreign Trade Policy and actual use of the duty free input in the export goods was not necessary. Therefore, the refund claims submitted by them are strictly as per Rule 5 of the Cenvat Credit Rules and they fulfilled all the requirements of the Notification No.5/2006. He submitted various case laws in support of his claim that even if the exports made under DEEC Scheme and duty free inputs are used refund of unutilized Cenvat Credit under Rule 5 of the Cenvat Credit Rules is admissible. He specifically referred to the decision of the Tribunal in the case of Commissioner of Central Excise, Jaipur-II Vs. Bhilwara Spinners Ltd. reported in 2011 (269) E.L.T. 384 (Tri.Del.). 7. The learned Additional Commissioner (A.R.) appearing for the Revenue submitted that the appellants had sufficient stock of imported duty free goods and the imported duty free goods are necessarily meant to be used only in the manufacture of goods for export under duty free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Ministry of Finance (Department of Revenue), No.11/2002 - Central Excise (NT), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150(E), dated 1st March, 2002, the Central Government hereby directs that refund of CENVAT credit shall be allowed in respect of : (a) input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking; (b) input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification. Appendix 1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Services Rules, 2005, as the case may be. 2... 3... 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule 3 of the said rules against goods exported during the quarter or month to which the claim relates (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner of Central Excise, Jaipur-II Vs. Bhilwara Spinners Ltd. reported in 2011 (269) E.L.T. 384 (Tri.Del.) wherein it was held by the Tribunal that there is no provision in Rule 5 that cash refund of accumulated credit is not available if exports are made under advance licence scheme. 11. We find that the Hon ble High Court of Karnataka has examined admissibility of refund under Rule 5 of the Cenvat Credit Rules,2004 in case of Shell India Markets Pvt. Ltd. vs. CCE, Bangalore 2012(278) E.L.T. 50 (Kar.) and the Hon ble High Court in para 7 of its judgment has held as under:- It is necessary to verify not only that particular input service is consumed for providing particular output service but also that eligible service received under various invoices have actually gone into consumption for providing impugned exported output service and not utilized for other purposes. We find that though these observations of Hon ble High Court are in respect of input services, these are squarely applicable to inputs also as under Rule 5 of the Cenvat Credit Rules inputs and input services are treated at equal footing. We therefore hold that refund of Cenvat credit in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
