9911796707
TMI Blog2007 (11) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-appeal 552(HKSCE/JPR-II/2005 543(HKS) CE/JPR-II/2005, dated 19-10-2005 5-10-2005. 2. The relevant facts of the case in brief are that the respondents filed applications for refund of duty under Rule 5 of Cenvat Credit Rules, 2004 for refund of the unutilized credit. The adjudicating authority rejected the said claim. Commissioner (Appeals) allowed the claims filed by the respondent. Hence, Revenue filed this appeal. 3. The learned Authorized Representative on behalf of the Revenue submits that the adjudicating authority rightly rejected the refund claim as the respondent exported the goods under advance licence scheme by which they were procuring duty free material. He further submits that on plain reading of Rule 5 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) allowed the claim on the ground that the refund claim filed under Cenvat Credit Rules, 2002, which provides refund of unutilized Cenvat credit in respect of export goods. It is observed that the refund of duty is prohibited only where there is claim of rebate of duty under the Central Excise Rules, 2002. 7. Notification No. 11/2002-CE. (N.T.), dated 1-3-2002 issued under Rule 5 of Cenvat Credit Rules, 2002 provides a declaration in the refund claim application that no separate claim for rebate of duties in respect of excisable goods used in the manufacture of the goods covered by this application or will be made under the Customs and Central Excise Duties Drawback Rules, 1971 or under claim for rebate under the Central Excise Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Authorized Representative (DR) that the respondent is getting the double benefit if the refund is allowed, not sustainable for the reason that in this case, respondents are getting the refund of the excise duty which they paid on the raw material used in the manufacture of exported goods. Under the advance licence scheme, the respondents are entitled to get the duty free material. The said duty free material may be replenished towards home consumption and set off is available to the respondent as Cenvat credit for payment of duty on final product which were ultimately cleared in home consumption with payment of duty. Therefore, I do not find any merit in the submission of the learned Authorized Representative (DR). So, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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