2017 (9) TMI 277

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... nt (A.R.) for the Respondent ORDER These appeals are directed against Orders-in- Appeal No. P-III/8-12/VM/10/2011 dated 13-1-2011, OIA No. P-III/RS/154-157/2011 dated 27-6-2011. 2. The fact of the present case is that appellant are engaged in the manufacture of dutiable goods as well as goods attracted Nil rate of duty. They have exported second category of goods and claimed refund in respect o .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... fund under Rule 5 cannot be rejected on the ground that being finished goods attracted Nil rate of duty. In this regard he placed reliance on the following judgments: (a) Commissioner of C. Ex. Ahmedabad-III Vs. Gujarat Ambuja Exports Ltd[2014(311)ELT 718(Tri. Ahmd.)] (b) Repro India Ltd Vs. Union of India [2009(235)ELT 614(Bom)] (c) Hotline Teletube & Components Ltd Vs. CCE Indore[1998(102) EL .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... title for the Cenvat credit on the input used in the such goods. Therefore, there is no question of availing cenvat credit and accumulation thereof, in absence of non availability of Cenvat credit and accumulation thereof question of refund under Rule 5 does not arise. He placed reliance on the following decisions: (a) Suryamitra Exim Pvt Ltd Vs. Commissioner of C. Ex. &Cus., Guntur[2012(283)ELT .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... claim is not sustainable. On this issue appellant s case is supported by following decisions: (a) Wellknown Polyster Ltd Vs. CCE Vapi[2011(267) ELT 221(Tri)] (b) CCE Vs. Drish Shoes Ltd [2010(254)ELT 417(H.P)] (c) Union of India Vs. Sharp Menthol India Ltd[2011(270)ELT 212] which is upheld by the Hon ble Supreme Court as[2015(320)ELT A104(S.C.)] As regard the issue that refund was not filed on .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... urt in case of Repro India Ltd(supra) and Sharp Menthol India Ltd(supra) decided the case in the favour of the assessee, particularly when Sharp Menthol India Ltd case was upheld by the Hon ble Supreme Court. As per my above discussion, I am of the considered view that the lower authorities have wrongly rejected the refund claim. I therefore set aside the impugned order and remand the matter to th .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X