9911796707
TMI Blog2017 (1) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly entitled for the refund of unutilized credit. The learned Commissioner (Appeals) has also held that all the input services are directly used in relation to the processing of iron ore and they are admissible for credit and all the input services fall in the definition of ‘input service’ as contained in Rule 2(l) of the Cenvat Credit Rules. Appeal dismissed - refund allowed - decided against Revenue. - ST/CROSS/162/2010 in ST/1031/2009-SM - Final Order No. 21202/2016 - Dated:- 17-11-2016 - Shri S.S Garg, Judicial Member Shri Parashiva Murthy, AR - For the Appellant None - For the Respondent ORDER The present appeal filed by the Revenue is directed against the impugned order passed by the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. ANZ International Vs. CCE, Customs, Bangalore reported in 2008 (224) ELT 573 (Tri.-Bang.). Aggrieved by the said order, the Revenue has filed the present appeal. 2. I have heard the learned AR. None has appeared on behalf of the respondent. 3. The learned AR submitted that the impugned order is not sustainable in law as the assessee is not entitled for cenvat credit on input or input services in terms of provisions contained in Rule 6(1) of Cenvat Credit Rules 2004 as the final product said to have been manufactured by them is unconditionally exempted from payment of duty or chargeable to nil rate of duty. He further submitted that the goods are unconditionally exempted under Notification issued under Section 5A of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled for the credit, there is no question of refunding the same. This is the argument of the Revenue. The learned Commissioner (Appeals) upheld the orders of the lower authority. 5.3 On a very careful consideration of the issue, I find that the lower authorities have held that credit of duty paid on inputs is not admissible by virtue of Rule 6(1) of the CENVAT Credit Rules. However, they have not properly appreciated that in the same Rule, sub-rule (6) carves out certain exceptions to Rule 6(1). In fact, the Commissioner (Appeals) in the impugned orders, has given the relevant extract of Rule 6(6), which is reproduced below :- Rule 6 (6). The provisions of sub-rules (1), (2) (3) and (4) shall not be applicable in case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-rule (1), (2), (3) and (4) shall not be applicable to goods removed without payment of duty, which are actually cleared for export under bond in terms of the provisions of the Central Excise Rules, 2002. The lower authorities were not prepared to give the benefit of this Rule to the appellant on the ground that these goods were exported under the 100% EOU Scheme and not under the Central Excise Rules, 2002. This approach is not correct. Any exported good does not suffer the incidence of Central Excise duty. That is why, there is a provision for exporting the goods under bond. In the case of 100% EOUs, the input can be imported free of duty. They can be obtained indigenously also free of duty. However, in certain circumstances, when du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above decision of the Hon ble CESTAT was challenged by the Department before Hon ble Karnataka High Court. Karnataka High Court in the case of CCE, Bangalore Vs ANZ International 2009 (233) E.L.T. 40 has held in para 3 as follows: 3. With reference to the above said grounds urged in this appeal, we have carefully examined the same to find out as to whether the aforesaid substantial question of law would arise or not for our consideration in this Appeal. The CESTAT, having regard to the undisputed fact that the respondent is 100% Export Oriented Unit (for short ECU ) in respect of which, benefit of CENVAT Credit Rules, 2004 is available for the inputs which will be used for manufactured goods of 100% export. Therefore, the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit on the duty of the inputs procured indigenously and when they were not in a position to utilize the same, they are entitled for the benefit of the refund under Rule 5 of the Rules. Therefore, the orders impugned in the Appeal before the CESTAT held to be bad in law and the same were set aside. Therefore, we do not find that no substantial question of law does arise in this Appeal for our consideration to answer the same in favour of the Revenue. Accordingly, the appeal is devoid of merits and therefore it must fail and is dismissed. 4.1. Further the learned Commissioner (Appeals) has also held that all the input services are directly used in relation to the processing of iron ore and they are admissible for credit and all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
