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TMI Blog2017 (11) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded within 15 days from the date of filing refund claim, if no demand of short levy is pending recovery. In this regard, since the refund was rejected by the adjudicating authority at the adjudication stage in view of pending demand, the issue whether CBEC Circular was applicable at that material time need not be taken up at this stage. The pendency of demand is an ongoing process which keeps changing from time to time. Hence benefit of circular can be given on merits at the material time only. Whether the AR1 s, Shipping Bills, invoices and other documents submitted with refund application are proper documents for sanctioning refund claim? - Held that: - as proof of export is established and procedural lapses have been rectified by the appellant, it is observed that compliance of the requirements of N/N. 5/2006-CE(NT) dated 14.03.06 has been done - substantial benefit cannot be denied for procedural lapses - refund allowed on this ground. Whether the calculation of credit accrued on inputs claimed to be used in the manufacture of export goods supported by the certificate of Chartered Accountant is acceptable? - Held that: - In Para-4 of the certificate, amount of total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the factory goes in the production and effects domestic clearance? - Held that: - the appellants have pleaded that the factory of the appellant remained closed and as a result, the credit lying in balance cannot be utilized as there were no domestic clearances - reliance placed in the case of Bishen Dyeing Printing & Weaving Mills [2007 (1) TMI 8 - CESTAT, MUMBAI], where it was held that the credit lying was on account of non-utilization in a particular month and the same cannot be kept pending for the future. As such, the refund is permissible under Rule 5 read with Rule 3 of the Cenvat Credit Rules, 2002. - the balance of credit lying unutilized is refundable to the appellants. Appeal dismissed - decided against Revenue. - E/Cross/187/2007 in E/2078/2007-EX[DB] - A/71318/2017-EX[DB] - Dated:- 10-10-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Mohd Altaf (Asstt. Commr.) for Appellant Shri R. Santhanam (Advocate) for Respondent ORDER Per: Anil G. Shakkarwar The present appeal filed by Revenue is directed against Order-in-Appeal No.210-CE/APPL/KNP/2007 dated 31.05.2007 passed by Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al through impugned Order-in-Appeal dated 31.05.2007. The findings by learned Commissioner (Appeals) are reproduced below :- The Adjudicating Authority has rejected the refund claim on the following grounds: (i). Proper and original documents relating to details of input used in the export goods, credit availed thereon, stock position of impugned inputs as on 31.03.2006 and Shipping Bills have not submitted by the appellant alongwith the claim in the absence of which claim could not be finalized; (ii). Benefit of CBEC Circular No. 828/5/2006-CX dt. 20.04.2006 is not admissible to the appellants as the demands of short levy were pending recovery against the appellant; (iii). The amount of credit accrued on inputs said to have been used in the manufacture of goods exported is calculated by the party and certified by the Chartered Accountant on Standard Calculation basis, but not on the actual basis and could not be quantified but varies in their different submissions; (iv). No documented correlation is made in respect of goods removed from the factory under invoices issued under Rule 1 of Central Excise Rules, 2002 and goods exported against the Shipping Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 2254.50P as the figure of Cenvat credit for all type of scooter and motor cycle whereas a different figure of ₹ 3424/- in respect of the motorcycle has been ignored to justify the pre-determined conclusion; the appellant has pleaded that the reason for such difference is due to the fact that commercial invoice number is mentioned in the shipping bill as per the annexed to ARE-1 s; further that these allegations were not made in the Show Cause Notice and hence cannot be made ground of rejection; there is no provision in the notification which makes it mandatory to file refund claim on quarterly basis; since the factory remained closed, no domestic clearances are likely to take place in near future and the volume of export has to go up up, the same cannot be utilized. Reliance on catena of judgments has been taken as mentioned in grounds of appeal and written submission; interest is payable on the refund amount for the period of delay in excess of three months as per the provisions contained in Section 11BB of Central Excise Act, 1944. After taking into consideration all the facts, following issues emerges for decision in the impugned appeal: (i) Whether refund i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the manufacture of export goods and ₹ 636/- lakhs have been utilized in paying duty on domestic clearances and remaining ₹ 309 lakhs have been claimed as refund. The argument putforth by the appellant is very clear and leaves no doubt as to the fact that credit lying in balance relates to inputs used in the manufacture of export goods. It is a settled law that certificates issued by the qualified professionals like Chartered Accountant cannot be rejected unless proved wrong by definite evidence, while holding so reliance is placed on CESTAT order in the case of Toyota Kirloskar Motor Ltd. Vs CCE, Bhopal [2005(187) E.L.T. 52 (Tr.-Bang)]. On the issue i.e. whether benefits of CBEC Circular No. 828/5/2006-CX dated 20.04.06 is applicable or otherwise, it is observed that the benefit of giving 80% of the amount of refund claimed within 15 days of filing the claim has been denied on the grounds that condition imposed in Para-4 of the Circular has not been fulfilled i.e. four demands were pending recovery against the appellant. Para-4 of the Circular provides that the 80% amount can be refunded within 15 days from the date of filing refund claim, if no demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t substantial benefit cannot be denied for procedural lapses. Accordingly, after taking cognizance of the cited CESTAT order, I hold that refund claim is not rejectable on these grounds. On the issue, the adjudicating authority has held that such calculation is not acceptable as it has been done on standard basis and not on actual basis and has varied in different submission, I have perused the certificate dated 09.05.06 issued by Chartered Accountant. At the outset it has been mentioned that the certificate is being issued after examining excise records, export records and costing records which is sufficient to prove that calculation of Cenvat credit has been made on actual basis and not on standard basis. In Para-4 of the certificate, amount of total credit, credit relating to input used in export goods, credit used in discharging duty liability and the balance lying unutilized has been clearly given which leaves no scope of ambiguity. On the plea of difference in calculation, it is observed that while making the calculation the adjudicating authority has taken into consideration the certificate of Chartered Accountant dated 09.05.06 which is with reference to one model name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have also placed reliance on the various pronouncements of CESTAT as well as of High Court in the matter, quoted supra. Though there are various judgments in their support, I reproduce the extract of recent judgment delivered in the year 2007 in the case of Bishen Dyeing Printing Weaving Mills [2007 (210) E.L.T. 0582 (Tri.-Mumbai)], which itself is based on an earlier CESTAT judgment of the year 2006 in the case of Navbharat Industries [2006 (199) ELT 0148 (Tri.-Mum)], being relevant in the circumstances of the present case. The Tribunal in Navbharat Industries case, supra, has observed:- We agree with the Learned Advocate appearing for the appellant that the provisions of Rule 5 relating to refund of Modvat credit accumulated in records on account of their non-utilization for the exported goods is a beneficiary piece of legislation, the refund arising on account of the same cannot be denied being a substantive right of the citizen. The wording of Rule 5 read with Rule 3 are very clear providing for refund of accumulated Modvat credit if the same cannot be adjusted for any reasons. As such the only condition in the said Rule is non-utilization of the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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