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TMI Blog2016 (3) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed the judicial discipline while rejecting the refund claim which were already sanctioned by the first appellate authority.Therefore, the impugned order to that extent is unsustainable liable to be set aside. Also, in the three refund claims, the findings that the benefit of Notification dated 14.03.2006 is not applicable for the period prior to Notification dated 14.03.2006 are not sustainable followed by the judgment of Tribunal in the case of Fibres & Fabrics International Pvt. Ltd. Vs. Commissioner of Commissioner (Appeals), Bangalore [2009 (2) TMI 110 - CESTAT Bangalore]. Therefore, refund claims which were rejected by both the lower authorities are to be allowed. - Decided in favour of appellant - Appeal No. ST/517/11-Mum - Order No. A/86335/16/STB - Dated:- 10-2-2016 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri E.P. Bharucha, Sr. Advocate with Shri Cyrus E. Bharucha, Advocate, Shri Shailesh Kalambi, Advocate And Shri Anish Karande, Advocate For the Respondent : Ms. P. Vinitha Sekhar, Dy. Commissioner (A.R.) ORDER PER: M.V. RAVINDRAN: This appeal is directed against Order-in-Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reflected in the ER-2 returns filed by them for the relevant period. It, therefore, appeared that since the appellants did not avail credit of input Services, the refund of CENVAT credit under Rule 5 of CENVAT Credit Rules, 2004 does not arise. The appellants were asked, vide letter date 09.06.2007, to furnish original duty paying invoices/bills raised by the service providers, documents pertaining to the availment of input CENVAT credit of input services, certified copies of Service Tax returns filed, Bank realization Certificates in respect of exports, copies of Bill of lading / Shipping Bills etc. The appellants stated that the original bills, being voluminous, may be verified at their factory premises. The appellants were further requested vide letters dated 22.06.2007 and 11.07.2007 to furnish the documents with regard to the availment of credit on input services but they failed to submit the same. Therefore, the appellants were issued show-cause notice proposing to reject their refund claims for ₹ 59,35,217/- as they failed to declare in their ER-2 Returns, the details of availment of CENVAT credit on input services and to furnish the documents as stated hereinabove, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellate authority in the order has directed that the original adjudicating authority to grant refund as per law which would mean that the adjudicating authority has to go into the specific of the refund claim. She reiterates the findings of the first appellate authority. 6. We have considered the submissions made at length by both sides and perused the records. On perusal of records, we find that there is no dispute as regards the facts that the appellant is a 100% Export Oriented Unit; appellant received inputs services on which credit was availed by them and utilised for manufacturing for goods that were exported; no dispute that the appellant is entitled to avail CENVAT credit on such input services; that they are not in a position to utilise the CENVAT credit for discharge of duty liability for the clearance made to home consumption. The appellant has filed three refund claims for the period 10.09.2004 to 31.03.2006 which was rejected by the adjudicating authority and on an appeal, the first appellate authority vide Order-in-Appeal dated 20.12.2006 held in the favour of the appellant. 7. We consider the issue in appeal filed by the appellant in respect of three refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.09.2004 to 31.03.2005 4,58,525 Ii 21.12.2005 01.04.2005 to 30.09.2005 10,74,696 Iii 26.06.2006 01.10.2005 to 31.03.2006 22,93,731 Iv 03.05.2007 01.04.2006 to 30.09.2006 21,08,265 8. The adjudicating authority, in the case in hand before us, mis-directed himself by presuming he was directed by the first appellate authority to consider the three refund claims as per law. Clear finding by the first appellate authority vide order dated 20.12.2006 as reproduced herein above, is directive in nature and surprisingly is not contested by the Revenue before higher judicial forum. In the absence of any appeal against such a clear directive to refund the amount, we are of the considered view the first appellate authority had sanctioned the refund claims holding categorically in favour of the appellant. It was not left to the adjudicating authority to revisit the issue of rejection of the three refund claims which have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5 as it existed there. In these circumstances, we do not find any merit in the impugned order. Moreover, the Commissioner himself in an earlier order had taken a different view and that order has not been appealed against. The same has reached finality. In these circumstances, the impugned order has no merits, the same is set aside. We allow the appeals with consequential relief. In view of above ratio, now on merits also, we hold that three refund claims which were rejected by both the lower authorities are to be allowed and we do so. 9. As regards the refund claims of ₹ 21,08,265/-, the said refund claim, undisputedly arises due to availment of CENVAT credit on various input credit which are used by the appellant for the production of goods which are exported. The factual matrix as to be eligible and avail of CENVAT credit on input services is not in dispute and the refund claim is also in time, in our considered view, the adjudicating authority as well as the first appellate authority has wrongly rejected the refund claims. We have perused the records and appeal memoranda. There is no dispute that service provider had rendered services and also paid the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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