9911796707
TMI Blog2007 (1) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... were not in a position to utilize the accumulated credit as the quantum of their clearance for home consumption was low as compared to clearance to EOU without payment of duty. The adjudicating authority has rejected the refund claims while relying upon the condition No.5 of Notification No.11/2002-CE(NT) dated 01.03.2002 observing that Rule 5 has not been fulfilled. Further, it is observed that the appellants have effected export clearances against UT-I/Bond without payment of duty instead of payment of duty under Rule 18 of the Central Excise Rules, 2002, which is resulted into accumulation of Cenvat credit. Lastly, it is observed that the appellants have been clearing the goods for export and the accumulated credit can be utilized for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to para 5 observations of the learned Commissioner while filing the refund application, various statements have been enclosed which shows the facts and figures- the receipt of goods, accumulated credit on that and the export of goods. These facts sufficiently shows the accumulation of credit which is not in their capacity to utilize the same. Whereas, the Commissioner (Appeals) has failed to appreciate the same. Further, it is putforth that where the situation arises of impossibility of utilization of accumulated credit, there is no option than to sanction the refund claim in cash. The support is drawn from the proposition laid down in the judgment of Om Prakash Jayaprakash and Co. vs. CCE, Surat - 2004 (178) E.L.T. 429 (Tri.-Del.) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition in the said Rule is non-utilisation of the credit and no-jurisdiction vests in the Central Excise Officer to find out the reason for such non-adjustment. The use of the expression that where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount is an unlimited expression and can not be narrowed or curtailed down by the department authorities, 7. On examining the facts and circumstances of the case and applying the ratio in the aforesaid decision, I am of the considered opinion that both authorities below have erred in disallowing the refund claim made by the appellants. Claim has to be sanctioned on account of export of goods for which the credit can not be adjusted in the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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