9911796707
TMI Blog2012 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... in to Lupin -Mandideep Unit for the period January, 09 to April, 09. 2. The brief facts of the case are that the appellants are manufacturer of excisable goods namely - Medicament falling under Chapter 30 of the Central Excise Tariff Act, 1985. They had filed 16 refund claims in respect of both the units pertaining to the period August,08 to July, 09 under Rule 5 of the Cenvat Credit Rules, 2004 read with Section 11B of the Central Excise Act, 1944. Along with their refund claim they had submitted following documents:- (i) Application for refund CENVAT Credit under Rule 5 of the Cenvat Credit Rules, 2004. (ii) Statement of input credit availed and utilized for the respective months. (iii) Particulars of inputs us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is the first and foremost condition for allowing the refund to the applicant. The adjudicating authority had failed to verify whether the refund claimed are for those inputs which have actually gone into the manufacture of final products which are subsequently exported. (ii) The adjudicating authority has failed to verify the quantity of input actually used in the manufacture of goods which are exported. (iii) The adjudicating authority also failed to verify the reasons for accumulation of CENVAT Credit as the unit is an 100% EOU, who can procure the raw material under bond and also export under bond. (iv) The formula adopted by the adjudicating authority for arriving at the proportionate CENVAT Credit is applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned to the appellant and in 5 cases, the excess refund was sanctioned. He submitted that this report clearly confirms that the appellants are not given any excess refund and in fact they have given less amount of refund to the tune of Rs. 1,75,31,035/-. The Commissioner (Appeals) has failed to appreciate this fact of less refund sanctioned to the appellants. Appellants are legally eligible for the additional refund of this amount due to revised working especially when the original refunds in each month were given based on the running credit balance after adjusting the refund given in each month. The learned Counsel, therefore, submitted that all the sanction orders are to be taken together as refund of a particular month depends on the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue, cross-objections were filed by the appellants before the Commissioner (Appeals) and he relied on the Tribunal's decision in the case of CCE v. Bajaj Hindustan Sugar & Inds. Ltd.- 2010 (253) ELT 614 (Tri-Delhi), wherein it has been held that in cross-objections against appeal the assessee can challenge part of order which was unfavourable to them, though they have not preferred the appeal against it. He submitted that in view of the above cited decision, the objection of the Revenue that the appellants did not challenge the Order-in-Original before the Commissioner (Appeals) does not survive. He therefore, submitted that since the impugned orders have been passed on the basis of verification report giving the monthwise detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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......................" 6.1 On going through the Rule 5 of the Cenvat Credit Rules,2004, we find that the refund of CENVAT Credit in respect of the inputs used in the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of all 16 Orders-in-Original. If the less refund was sanctioned by the Assistant Commissioner to the assessee, there is no reason to file the appeal before the Commissioner (Appeals) by the Revenue. We, therefore, hold that the appeals were filed by the Revenue before the Commissioner (Appeals) against the principle of sanctioning of refund on the basis of proportionate credit taking the ratio of export turnover to total turnover. This was not case of the Revenue to file the appeals only on those cases where the excess refund was sanctioned. In fact, whether the refund sanctioned was excess or not was based on the verification report dated 12.5.2010 sent by the Commissioner, LTU in response to the Commissioner (Appeals)' letter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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