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TMI Blog2012 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on the basis of proportionate credit and he has not considered the cases where less refund were sanctioned to the assessee, though the appeals were filed by the Revenue in respect of all 16 Orders-in-Original - matter remanded back to the original adjudicating authority to examine and decide the refund claims on the basis of actual use of inputs gone into the manufacture of final product exported under bond or under letter of undertaking month-wise - E/1677 TO 1692 OF 2010 - a/241-256/12/EB/C-II - Dated:- 21-2-2012 - S.S. KANG And SAHAB SINGH, JJ. M.H. Patil for the Appellant. V.K. Singh for the Respodnent. ORDER Sahab Singh, Technical Member - These are 16 appeals filed by M/s. Lupin Ltd. (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Central Excise Duties Drawback Rules, 1971. 2.1 The adjudicating authority after going through all the refund claims and all the relevant documents has sanctioned the refund claims to the appellants holding that the assessee is eligible for refund to the extent of ratio of export turnover to the total turnover. These orders passed by the adjudicating authority were reviewed by the Commissioner and 6 appeals were filed by the Assistant Commissioner of Central Excise Service Tax, LTU, Mumbai against the 16 Orders-in-Original passed by the Assistant Commissioner of Central Excise Service Tax, LTU, Mumbai. These appeals were filed by the Revenue on the following grounds: - (i) The Rule 5 of Cenvat Credit Rules, 2004 and the No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rejected and recovered from them. As regards less amount sanctioned to the assessee in 8 cases, he held that this is not the subject matter of the appeals before him. The appellants are before us in appeal against the impugned orders. 3. Shri M.H. Patil, learned Advocate appearing for the appellants submits that the Commissioner (Appeals) passed these order on the basis of verification report called for by the Commissioner (Appeals) vide his letter No. LTU/MUM/C(A(-27/09/D/1015 dated 09.02.2010. In response to this letter from the Commissioner (Appeals), the Commissioner, LTU has sent a verification report on 12.05.2010 vide his letter No. LTU/MUM/CS/GLT-4/l_upin/191/09/4021 dated 1.5.2010. In this report, the Commissioner, LTU has gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for additional refund of Rs.1,75,64,260/-. 4. Shri V.K. Singh, learned Addl. Commissioner (A.R.) appearing for the Revenue submitted that when the appeals were filed by the Revenue before the Commissioner (Appeals), the assessee has filed the cross-objections but they have not filed any appeal against the Orders-in-Original. He submitted that in cases where the less refund was sanctioned to the appellants, they have not filed any appeal before the Commissioner (Appeals) and at this stage, they cannot claim the benefit of getting the additional refund arising out of the Commissioner (Appeals) order. He, therefore, submitted that the appeals filed by the appellants claiming additional refund need to be rejected. 5. In his rejoinder, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, or used in the intermediate product 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 utilized by the manufacturer or provider of output service towards payment of, (i) Duty of excise on any final product cleared for home consumption or export on payment of duty; or (ii). ............................................" The Notification No. 5/2006-CE (NT) dated 14.3.2006 was issued under Rule % of the Cenvat Credit Rules prescribing the procedure for claiming the refund of CENVAT Credit. Part of the said Notification is reproduced below:- "In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Before granting any refund, the Assistant Commissioner is required to ascertain the quantity of the inputs and credit availed on those inputs which were used in the manufacture of products exported under bond or under letter of undertaking. In these cases, the original authority has sanctioned the refund based on the ratio of export turnover to the total turnover, which is contrary to the provisions of Rule 5 and the Notification issued thereunder. Therefore, all the orders passed by the Assistant Commissioner sanctioning the refund on proportionate basis are not proper and legal and were rightly challenged by Revenue before the Commissioner (Appeals). 7. We find that the Commissioner (Appeals) has given finding only in those cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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