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TMI Blog2014 (3) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ice also, the orders in the second round of litigation are not maintainable. Option to the dealer of textile goods to pay duty - When such an option is given, it is to be understood that the option is in respect of all matters related to payment of duty as well as claims of refund consequent to exports and the arguments made by the Revenue that only for payment of duty, a dealer of textile goods will be considered as a manufacturer and not for refund of Cenvat credit is not consistent and not in conformity with the policy of the Government to allow export of goods without incidence of taxes - Following decision of Essar Steel Ltd Vs. UOI [2009 (11) TMI 141 - GUJARAT HIGH COURT] - Decided in favour of assessee. - E/88/2008 - - - Dated:- 14-8-2013 - Mr. Mathew John, J. For the Appellant : Shri S Jaikumar, Adv., For the Respondent : Shri P Arul, Supdt. (AR), JUDGEMENT The appellant is in second round of litigation. 2. The proceedings involved five show cause notices issued for rejecting refund claims filed by the appellant, during Dec 2004, as per the provisions of Rule 5 of the Cenvat Credit Rules, 2002. The appellant was both a manufacturer and a dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases of other type of exports. Operative part of the order of the Commissioner (Appeal) is reproduced below:. 7.5 However, I find from the records of the case relating to appeal A.No. 43/2004 and order in Original C.No. V/84/18/75A/04 Rebate that in certain cases the appellants have produced copies of ARE1s endorsed by Customs authorities for shipment for the goods removed from the appellants' unit and these ARE1s had been signed by both the appellants and exporter namely M/s. Kesma Impex Ltd. From the ARE1s it is seen that the goods had been removed from appellants' premises only, against CT1s. Hence, applying the ratio of the judgement cited above the appellants are eligible for refund in respect of cases in which the goods manufactured by the appellants have been removed under such ARE1s signed by the appellants and merchant exporters and removed from the factory of the appellants. In respect of other removals made against CT1s wherein the merchant exporters had not exported the goods from appellants' premises or removals against Annexure I they are not eligible for refund as claimed by them due to the reasons given in the forgoing paras. 7.6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (158) ELT 723 (Tri.-Kol.) and other decisions held that refund claims were not deniable to the appellants on the ground that the export goods were not removed from their factory. The appeal filed by the appellant was allowed. The operative portion of the Tribunal's order is reproduced below:- The refund claim considered by the Tribunal in the case of UIC Wires Limited (supra) was one filed under sub-rule 7 of Rule 57 AC of the Central Excise Rules, 1944. The refund claims in question in the present case were filed under Rule 5 of the Cenvat Credit Rules, 2002. This Rule was also cited before the Tribunal in the case of UIC Wires Limited (supra) and the Tribunal found it to be pari materia with Rule 57 AC (7) ibid. In the circumstances, as rightly submitted by the Ld. Counsel, there must be no difficulty in applying the ratio of the above decision of the facts of the instant case. In the result, it will be held that the refund claims are not deniable to the appellants on the ground that the export goods were not removed from their factory. It appears from the impugned order that, irrespective of whether the refund claim relates to export goods cleared under ARE-1s o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The registered dealers of textiles and textile articles falling under Chapters 50 to 63, at his option, can take credit on his purchases and utilise the same to pay duty at the sale price of the said goods after pacing etc. treating the clearance of such goods from his premises, as if they were manufactured by him 9. He submits that Rule 4A (b) specifically allows such persons to take Cenvat credit of dues on inputs and the appellant had taken such Cenvat credit and claimed refund of such credit taken. His submission is that when the central excise Rules provides that when the assessee is deemed as a manufacturer for the purpose of payment of duty, for the purpose of refund under Rule 5 of Cenvat Credit Rules also he is to be treated as a manufacturer and refund should be allowed. 10. Opposing the prayer, the Ld. AR of the Revenue submits that Rule 4A (a) introduced by Notification No. 34/03-CE(NT) envisages payment of an amount equal to the duty of excise . He submits that therefore this amount cannot be treated as excise duty. Further it is submitted that it clearly shows that the dealer is not exactly at the same footing as the manufacturer. Since, Rule 5 specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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