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TMI Blog2013 (11) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... extile fabrics mainly for export. During the period 2002-03, there was a scheme under which the appellant was eligible to take deemed CENVAT credit on the grey fabrics which were processed. Since major part of the fabrics processed by the appellants were either exported directly by the appellant or supplied by the appellants to other exporters as per the provisions of Rule 19(2) of the Central Excise Rules, 2002 read with Notification No. 43/2001-CE (NT) the appellant was not able to use the entire Cenvat credit for paying excise duty on DTA clearance which was low in volume. So they filed refund claim under the provisions of Rule 5 of CENVAT Credit Rules, 2004 for a total amount of Rs.51,89,372/-. Out of this, an amount of Rs.36,18,038/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed only on the quantity of exported goods cleared under bond and not to the quantity cleared under rule 19(2) of CER, 2002 even though it was held that the goods cleared under rule 19(2) of CER 2002 is also subsequently cleared for export. Merely because the impugned goods were cleared under rule 19(2) of CER 2002 for the ultimate export of such goods, the substantial benefit of refund of unutilized deemed credit could not be denied to the appellant. The lower authority has erred in rejecting the refund claim on a wrong notion that the goods cleared under rule 19(2) of CER 2002 for export would not be covered within the ambit of the notification No. 6/2002-CE (NT) dated 1.3.2002. There is infirmity in the order of the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the adjudicating authority. Aggrieved by the order of the Commissioner (Appeals), the appellants have filed this present appeal. 4. Arguing for the appellant, the learned counsel for the appellant submits that the order of the Commissioner (Appeals) in the first round nowhere says that the appellant has to produce certificate of non-availment of drawback. In fact there is no such certificate prescribed under the relevant rules. He submits that this is a certificate thought of by the Assistant Commissioner / Commissioner (Appeals) in second round of proceedings. He further submits that as per the provisions of Notification No. 43/2001-CE(N.T), goods were supplied free of duty against a procurement certificate issued by the Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that if the person procuring the raw material violates any of the conditions, the consequence shall lie with the person so procuring the raw material and not the appellant who honored a procurement certificate issued after executing a bond and countersigned by the excise authorities. Therefore, it is his prayer that there is no reason to withhold the refund claimed by the applicant and the balance of the refund should be granted. 5. Opposing the prayer, the learned AR for Revenue submits that the refund under Rule 5 of the Central Excise Rules, 2004 is subject to the condition that the goods manufactured out of the raw material is exported and no drawback is claimed in respect of such goods. When anybody is claiming refund, under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possible for the appellant to produce such document which did not belong to the appellant. The merits of this case has to be seen against such factual matrix. Once it is agreed in principle that refund as per provisions of Rule 5 of CENVAT Credit Rules, 2004 shall be granted, in situation where the goods are supplied to any manufacturer without payment of duty under provisions of Rule 19(2) of the Central Excise Rules, 2002 and Notification No. 43/2001, the concerned assessee can, at this point of time, be asked only to produce the procurement certificate countersigned by the Assistant Commissioner having jurisdiction over the person procuring the goods. The said Assistant Commissioner has a responsibility to ensure that the goods so pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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