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TMI Blog2017 (8) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... y and thereafter filing of rebate claims the impugned order did not elaborate as to how such a thing was not examined and correct action taken by the Jurisdictional officers in control of EOU. In fact, the impugned order states the assessee did a mistake and deposited the amount voluntarily without ever mentioning how such rebate was examined and sanctioned by the Jurisdictional officer. Regarding the availment of Cenvat credit of ₹ 76,72,000/-, we note that the whole issue cropped up only because of irregularity of the procedure followed by the appellant in exporting the goods on payment of duty in terms under various ARE-1s. Surprisingly, the Revenue become party to such action as the ARE-1s and the claims were examined and consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. The matter has to go back to the Original Authority to examine all the above-mentioned issues and take a holistic view about correctness of credit initially taken by the appellant on various inputs and the benefit accruing on such inputs to be paid to the appellant in terms of applicable provisions of law, more specifically Rule 5 of Cenvat Credit Rules, 2004 - appeal allowed by way of remand. - E/1115/2010 - Final Order No. A/50667/2017-EX(DB) - Dated:- 7-2-2017 - Dr. Satish Chandra, President and Shri B. Ravichandran, Member (T) Shri Prabhat Kumar, Advocate, for the Appellant. Shri R.K. Manjhi, Authorized Representative (DR), for the Respondent. ORDER [Order per : B. Ravichandran, Member (T)]. - The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 7,88,553/- erroneously sanctioned as rebate and to disallow the credit of ₹ 76,72,000/- taken by the appellant. The Original Authority held that the Cenvat credit taken by the appellant is without support of documents prescribed under Rule 9 and such credits can be taken only on inputs in terms of Rule 3 of the Cenvat Credit Rules, 2004. He also held that the rebate already sanctioned is inadmissible to the appellant. He imposed a penalty of ₹ 1,53,000/- in terms of Rule 15/15A of Cenvat Credit Rules, 2004. 3. The learned Counsel for the appellant submitted that the exports by the appellants under form ARE-1s were not disputed. They have paid duty on these exported consignments and produced proof of exports. They h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2015 (321) E.L.T. 89 (Raj.). Accordingly, the view of the Original Authority that the appellants are not eligible for rebate claim in terms of Rule 18 of Central Excise Rules, 2002 is correct. However, we note that the said amount was sanctioned after due adjudication by the Jurisdictional Assistant Commissioner. The order-in-original dated 22-2-2008 was not reviewed for filing appeal. In fact show cause notice dated 2-2-2009 issued in this case states that on re-examination of the issue, the rebate claims were found to be wrong. The show cause notice was issued without any review and appeal of order-in-original passed by the Assistant Commissioner. Accordingly, the impugned order to the extent that it seeks to reverse the decision of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only talks about suo motu re-credit availed by the appellant equivalent to the amount debited in the Cenvat account on export consignments. First of all, it is necessary to ascertain the correctness of the credit availed on various inputs by the appellant. If those credits were correctly availed then the same is available in the books of accounts of the appellant to be dealt with in accordance with law. Further, the appellant claimed eligibility for refund of accumulated credit available in their Cenvat account. Since, they could not utilize the accumulated Cenvat credit, provisions of Rule 5 of Cenvat Credit Rules will come into play for deciding the eligibility of the appellant for refunds. We note that the appellants submitted that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credits on the inputs were rightly taken by the appellant, the same cannot be taken out of their books simply on the ground that the amount was debited by them on export of goods under claim for rebate. The credit on inputs available in the books of the appellant is rightly eligible for refund under Rule 5 subject to verification of quantification. It is not correct on the part of the lower authorities to deny re-credit of improperly debited credit on export of goods and at the same time reject the appellant s claim under Rule 5 on the ground that there is no balance in the credit account. This actually puts the appellant in no win situation with reference to legitimately available credit on inputs and their further right to claim benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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