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TMI Blog2014 (7) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... taken a decision to avail cenvat credit and indicated the same at the time of removal. It is strange to note that Central Excise Officers have certified the availment of cenvat credit even though the appellant was not registered and they had not made any verification whatsoever with regard to availment of cenvat credit - Following decision of WELL KNOWN POLYESTERS LTD. Versus COMMISSIONER OF C. EX., VAPI [2011 (1) TMI 664 - CESTAT, AHMEDABAD] - rejection of refund claim on the grounds enunciated are not sustainable - Decided in favour of assessee. - Appeal No. E/368/2007 - Final Order No. 40281/2014 - Dated:- 5-3-2014 - Shri P.K. Das, J. For the Appellant : Shri Raghavan Ramabhadran, Advocate For the Respondent : Shri Parmod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the refund claim on input service credit and therefore it is not hit by the first proviso to Rule 5. Regarding the other issue, insofar as ineligibility of availment of CENVAT Credit under Rule 6 of the CENVAT Credit Rules, 2004, the learned Advocate drew the attention of Bench sub-rule (6)(v) of Rule 6 of the CENVAT Credit Rules, 2004. In the present case, the appellant executed a LUT which was not renewed at that point which cannot be a reason for rejection of the refund claim. He relied upon the decision of the Tribunal in the case of Well Known Polyesters Ltd. Vs. CCE - 2011 (267) ELT 221 and the decision of the Hon ble Bombay High Court in the case of Repro India Ltd. Vs. Union of India - 2009 (235) ELT 614 (Bom.). 3. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect 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 products cleared for home consumption or for export on payment of duty; or (ii) service tax on output service and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims a rebate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to avail CENVAT credit in terms of Rule 6 of CENVAT Credit Rules 2004 and consequently refund of the amount is not eligible. I find that sub-rule (6) (v) of Rule 6 of the CENVAT Credit Rules, 2004, provides that the clauses (i), (ii), (iii) and (iv) to proviso to sub-rule (6) shall not be applicable in the case of excisable goods removed without payment of duty for export under bond in terms of provisions of the Central Excise Rules, 2002. There is no dispute that the goods were exported and the adjudicating authority observed that the appellant did not renew the LUT for the period covered under the refund claim. The Division Bench of the Tribunal in the case of Well Known Polyesters Ltd. (supra) following the decisions of the Hon ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial is established by other evidences and just because of procedural violation, that by itself will not disentitle them from taking the benefit. In this case it is not the case of the department that goods have not been exported or appellant did not have the relevant documents for availing credit or inputs have not been used for the manufacture of exported goods. We also take note of the fact that in the case of Tuffropes Private Limited v. CCE, Vapi - 2009 (233) E.L.T. 544 (Tri.-Ahmd.), this Tribunal had taken a view that exempted goods can also be cleared under bond. Further, in the case of Commissioner v. Suncity Alloys Pvt. Limited - 2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.), the Hon ble High Court of Rajasthan held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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