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TMI Blog2018 (12) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... percent ad valorem whereas the rate of duty on home consumption is 8 percent ad valorem. The case of the department is that the goods exported by the respondent are exempted from Central Excise duty. Therefore, there was no requirement of exporting the goods under Bond/LUT. Accordingly, the appellant's case is not covered under Rule 6 (6)(v) of Cenvat Credit Rules, 2004 / Rule 6 (5)(vi) of Cenvat Credit Rules, 2004. Accordingly the respondent is not entitled to Cenvat Credit and consequently, no refund shall is not admissible. The Adjudicating Authority rejected the refund claim which was allowed by the Commissioner (A) by passing a very reasoned order and also relying on the Tribunal's Order in the respondent's own case reported as Commissioner of C. Ex. & Cus. Surat Vs. Nemlaxmi Books India P. Ltd. 2009 (236) E.L.T. 260 (Tri- Ahmd.). Therefore, the present appeals by the Revenue. 2. Shri K.J. Kinariwala, Ld. Asst. Commr. (AR) appearing on behalf of the Revenue reiterates the grounds of the appeal. He submits that the appellant's product being exempted from Excise duty was not supposed to be exported under Bond. Therefore, as per Rule 6, the appellant was not entitled for the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the manufacture of exempt goods viz, note books cleared for export. This aspect had been decided in their favour vide Commissioner (A), Central Excise & Customs, Surat-Il order No. RS/195/SRT-II/06 dtd.12.6.06 and upheld by the Tribunal vide its Final Order No.A-829&830/WZB-AhmdJO7 dated 11.4.07 in Appeal No. E/2787/2006 in which the departmental appeal against the Commissioner (A)'s said order was rejected. ii) They, being manufacturer-exporters, were exporting their goods on execution of LUT which was in accordance with the Notfn.no.42/2001-CE(NT) dtd.26.6.2001 issued under rule 19 of CER. Such exports under LUT were to be taken on the same footing as exports under Bond. He relied upon Commissioner (A), Surat-Il order No.MS/367-375/SRT-II/2007 dtd.27. 11.07 and OIA No. MS/376-377/SRT-II/2007 dtd.27.1 1.07 in this respect and submitted that the departmental appeal against the said orders was rejected vide Tribunal's Order No.A12356- 3 66/WZB/AHD/08 dtd.27. 10.08 in E/3 76-386/08. (iii) The department had not filed any appeal against the Tribunal's orders mentioned at sr. no. (i) and (ii) above and therefore the position on these issues had become final in their own case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Ltd v/s CCE, Raigad - 2007 (209) ELT 67 (Tn), Pals Micro Systems Ltd v/s CCE, Mangalore -2007 (212) ELT 373 (Tn-Bang). 4. I have gone through the impugned order, the Appeal memorandum and the submissions made by the Appellants during the Personal Hearing. 5. The Appellants had expontd exempted goods under LUT. They had availed Cenvat credit on inputs used in the manufacture of the said exempt goods exported. Through Applications filed, they sought refund of Cenvat Credit accumulated oh account of export in terms of Rule 5 of the Cenvat Credit Rule, 2004. It is observed that the Adjudicating Authority has rejected the above applications on the following grounds; (i) Bond/LUT is not required when exempted go4ds are exported; therefore they are not covered under Clause (v)of Sub Rule 6 of Rule 6 of Cenvat Credit Rules , 2004 and hence they were not eligible for Cenvat Credit by virtue of Rule 6(l) of Cenvat Credit Rules , 2004. (ii) Since no Cenvat Credit is allowed on such inputs, the question of accumulation and subsequent refund of the same under Rule 5 of Cenvat Credit Rules, 2004 does not arise. (iii) There is no provision in the Central Excise Act, 1944 and Rules fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under "5.3 The not notification no. 42/2001-CE (NT) dated 26.06.2001 issued under rule 19 of the Central Excise (No. 2) Rules, 2001 notifies the conditions and procedures for export of all excisable goods, except to Nepal and Bhutan without payment of duty from the factory of the production or the manufacture or warehouse or any other premises as may be approved by the Commissioner of Central Excise. Condition No. 1 of the said notification reads as under. "1. Conditions: (i) that the exporter shall furnish a general bond in the Form specified in Annexure-I to the Assistant Commissioner of Central Excise.................... The manufacturer-exporter may furnish a letter of undertaking in the Form specified in Annexure-Il in lieu of a bond." From perusal of the above, it is clear that the letter of undertaking in the form UT-1 is to be used by the manufacturer-exporter for the export of all excisable goods. 5.4 in this connection 1 also refer section 2(d) of the Central Excise Act, 1944 which reads as under "(d) "excisable goods" means goods specified in the First Schedule and the Second Schedule to the Central Excise Tarff Act, 1985 (5 of 1986) as being subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5 ibid subject to the fulfillment of the conditions prescribed therein. The department filed appeal against the above OIA and the same was rejected by the Tribunal vide F.0.No. A1829 and 830/WZB/AHVD/07 dated 04.04.07 in Appeal No. E/2787/2006 and E/C0/01/2006 on the ground that no merit was found in the revenue appeal. The Appellants have contended that the Department has not filed any appeal against the Tribunal's said decision. There is nothing on record to the contrary. In the circumstances the said issue (ii)(a) has also become final vis-à-vis the present appellants and it was neither correct nor proper for the lower authority to have taken a different view. 7.1 In this connection, it is also observed that in similar facts and circumstances where inputs were used in dutiable as well as exempted final products and the exempted products were being entirely exported out of India, it was held by the Hon'ble Bombay High Court in the case of Repro India Ltd v/s U0I reported in 2009 (235) ELT 614 (Bom.) that in such a situation exports could be made under LUT, that in such situation Rule 6(6)(v) of Cenvat Credit Rules 2004 was applicable in terms of which the bar provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.3.06 issued under rule 5 of Cenvat Credit Rules, 2004. In the present case, other than the objections as at (i) and (ii) above, neither the SCN nor the impugned OLOs refers to any of the other conditions as specified in the above mentioned Notification issued under rule 5 of the Cenvat Credit Rules, 2004 having been contravened /violated. In the facts and circumstance of the case and as in view of the fact that the objections at (i) and (ii) of Para 5.1 above are found to be not sustainable (due to various reasons as discussed in para 6 and Para 7 above and their various Sub-paras), I hold that the rejection of the refund claim under Rule 5 ibid is not legally sustainable. 9. It is observed that in coming to his conclusion, the Adjudicating Authority has relied upon the Judgments of the Supreme Court in the cases of Ichalkaranji Machine Centre Pvt. ltd., Vs Collector, 2004(l74)ELT 417 and Eicher Motor Ltd., 1999 (10) ELT 3 (SC). On going through the said judgments, it is observed that these cases were dealing with issues entirely different from the issues as involved in the present case and certain general observations of the Hon'ble Apex Court with regard to the purpose of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Adjudicating Authority becomes all the more inappropriate considering that the specific issues involved in the present case are governed by specific provisions and in respect of which the issues had already been decided by the appellate authority in the party's own case and Departments appeals against the said OlAs were rejected by the Tribunal and these decisions as well as other judicial decisions directly on the particular issues involved in the case were also cited before him but these were totally disregarded by the Adjudicating Authority. 9.2 I, therefore, find that the reliance placed by the lower authority on the cited decisions of\ the Apex Court is misplaced and does not support view taken by the lower authority. It is also quite clear that in passing the impugned OlOs, the adjudicating authority has violated the principles of judicial discipline. 10. In view of the discussion and findings in the foregoing paras, it is held that the Adjudicating Authority has erred in holding that Cenvat cannot be availed on inputs used in the manufacture of exempted goods exported under Bond/LUT and that the appellants are not entitled to the refund in the present cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation thereto are quite clear in that order passed by higher appellate authority in cases of refund under section 11B of the Act shall be treated as an order issued under Section 11 BB of Central Excise Act, 1944. Therefore, the appellants are entitled to interest for the period from the ninety first day from the date of filing of the relevant Refund Applications to the date on which the refund is granted to the Appellants, by virtue of this order. 12. In light of the discussion and findings above, the impugned orders are set aside and I allow all the present appeals with consequential relief to the Appellants. The Adjudicating Authority shall grant the refund arising out of all the appeals decided herein, together with interest in terms of Section 11 BB of Central Excise Act, 1944." On going through the above finding we do not find any infirmity therein and we are completely in agreement with the view taken by the Ld. Commissioner. Without prejudice to our above finding, we also observed that except the one appeal no. E/11633/2018 which involve refund amount of Rs. 20,22,895/- in all other appeals, the amount involved is less than 20 lakhs, therefore, all those appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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