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TMI Blog2019 (1) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefit of Notification No. 30/2004-CE. The appellant paid duty equivalent to cenvat credit availed on input using manufacture of final product and lying in stock in process and containing in final product. The appellant debited Rs. 4,85,12,181/- from the total balance of cenvat credit of Rs. 14,12,16,832/-. The appellant filed refund claim on 05.09.2008 and 15.09.2008 in respect of inputs containing in exported final product under Rule 5 of Cenvat Credit Rules, 2004. The Assistant Commissioner rejected the refund claim vide order dated 24.04.2009 for the reason that the appellant manufactured and cleared the goods under area based exemption notification. Being aggrieved by the said rejection order of Assistant Commissioner, the appellant filed appeal before Ld. Commissioner (Appeals) vide order dated 26.10.2009 who allowed the appeal by remanding the proceeding to the adjudicating authority for de novo consideration. In the de novo proceeding, the Assistant Commissioner sanctioned the refund claim vide order dated 27.01.2010 for the period Oct 2007 to March 2008 under Rule 5 of Cenvat Credit rules, 2004 read with Notification No.05/2006-CE(NT) dated 14.03.2006. The department ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had reversed the said amount, therefore, the demand does not exist. He submits that Rule 5 is independent from the Rule 11, Rule 11 is only applicable in respect of exempted goods cleared domestically and not in respect of export goods for which special provision of refund under Rule 5 exists. He submits that since the appellant availing Notification No. 29/2004-CE, they are availing the cenvat credit on capital goods and input services and used the same for payment of Central Excise duty. Since export turnover of the appellant was more than domestic clearance, cenvat credit of inputs used for manufacture of exported goods was lying unutilized; therefore, the appellant was entitled to carry forward cenvat credit as on 01.04.2008. He further submits that the SCN for the disputed period i.e. 31.03.2008 ought to have been issued or before 10.04.2008. Since SCN has been issued on 06.05.2009, the same is beyond the normal period and, therefore, it is not sustainable on limitation itself. In support of his above submission, he placed reliance on the following judgments and Board Circulars: * Jenntex Engg. Company 2009 (234) ELT 519 (Tri.Chennai) * New Empire Textile Processors P. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty on any other final product whether cleared for home consumption or for export, or for payment of service tax on any output service, whether provided in India or exported." From the plain reading of the above Rule (3) of Rule 11, it is observed that the manufacturer, if he opts for exemption from whole of the duty of excise, he is required to pay an amount equivalent to the cenvat credit of inputs received and used in manufacture of said final product and it is lying in stock or in process or is contain in the final product lying in stock if the exemption is absolute and after deducting the same, if any, amount from the balance of cenvat credit still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export or for payment of service tax on any output service whether provided in India or export. As per the facts of the present case, though on 01.04.2008 and unutilized cenvat credit of Rs. 9,64,05,566/- was lying but out of the said amount of Rs. 8,57,60,788/- was related to the inputs used in the manufacture of exported goods. The appellant claimed refund under Rule 5 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the final product is exempted, the credit is not available, however exception is provided under sub Rule (6) particularly in Clause (V) thereof, that if the goods are cleared for export under bond and in terms of Provision of Central Excise Rules, 2002, the provision of Sub Rule (1), (2), (3) and (4) shall not apply that means even if the final product is exempted, the cenvat credit of inputs used in the manufacture of export goods is available. In view of Rule 6(6), the lapsing of cenvat credit provided under Rule 11(3) related to goods already exported shall not apply, otherwise Rule 6(6) will become redundant. The legislature has not specifically provided the lapsing of cenvat credit which was allowed in terms of Rule 6(6). The cenvat credit in respect of inputs used in export goods has been allowed as refund under Rule 5, Rule 5 is also independent from Rule 11(3). In the present case since the cenvat credit lying unutilized as on 01.04.2008 is attributed to the inputs used in the goods already exported before 01.04.2008, the refund was already accrued and admittedly sanctioned to the appellant. Rule 5 also does not provide exception with reference to Rule 11 of Cenvat Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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