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TMI Blog2017 (7) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authorities have denied the refund on the ground that the firstly refund under Rule 5 of Cenvat Credit Rules shall not be applicable in case the assessee claim rebate or drawback. Secondly, the Rule 5 is applicable only in case where the export is made under bond. Being aggrieved by the impugned order, the appellant is before me. 2. None appeared on behalf of the appellant despite notice. No adjournment request is placed in file therefore, I, proceed to decide the appeal on merit. 3. Shri H.M. Dixit, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by the Ld. AR and on perusal of the record. I find that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided before me is whether the appellant eligible for refund under Rule 5 of the Cenvat Credit Rules, 2004, for whi Refund application has been made. 6. The facts of the case is that the appellant is a regular exporter of P & medicaments. They mainly export under rebate on payment of duty medicaments. They also export negligible percentage of medicaments under Bond without payment of duty in addition to clearance for home consumption. In the instant case, the appellant had filed a refund claim for accumulated/unutilized Cenvat credit under Rule 5 of the CCR, 2004. The procedure for such refund is prescribed in Notification No.5/2006-CE(NT) dated 14.03.2006. The SCN proposes to deny the refund claim on the following grounds; (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect 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 product 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 or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case and hence, Rule 5 is not applicable in the facts and circumstances of the case. 8. Now in this case, final product has been exported, on payment of under claim for rebate. It therefore emerges that input Cenvat credit in the instant case is accumulating not because of export of resultant goods under' Bond or letter' of undertaking, without payment of duty but due to inverted duty structure of the product, Rule 5 of the CCR, 2004 is meant for refund of accumulated credit due to export of resultant product under Bond or LUT, without payment of duty; and not on account of inverted duty structure (i.e. finished product carrying less rate of duty as compared to rate of duty of inputs). 9. The ratio of case laws relied upon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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