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TMI Blog2020 (2) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, claim as to the benefit of CENVAT just as a normal import which is suffering duty is also unavailable for the very same reasons, also since the rules/procedures/conditions governing normal import compared to the one under Advance Authorization may vary because of the nature of import. Admittedly, the inputs imported have gone into the manufacture of goods meant for export, but the export did not take place. At best, the appellant could have availed the CENVAT Credit, but that would not ipso facto give them any right to claim refund of such credit in cash with the onset of G.S.T. because CENVAT is an option available to an assessee to be exercised and the same cannot be enforced by the CESTAT at this stage. There is no question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the CENVAT Credit Rules with also no scope to report the same under Transitional Credit while migrating to G.S.T., the refund in cash was claimed under Section 142 (3) ibid. 3. The Adjudicating Authority vide communication dated 06.06.2019 after considering the contentions of the appellant insofar as refund was concerned, intimated that the refund claim of the assessee of Customs Duty (i.e., CVD and SAD) which were legitimately payable, having been paid for non-fulfilment of the conditions of import under Advance Licence, was not covered under Section 142 ibid and consequently, the refund was rejected. Aggrieved, the assessee preferred an appeal before the Commissioner of G.S.T. and Central Excise (Appeals-I), Chennai, who vide impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the condition of fulfilling export obligation of the final product; that the appellant having not fulfilled the said obligation, the same has rightly suffered Customs Duty because of the duty free import. 6.2 With regard to the cases relied on by the assessee, she would submit that the decisions are on refund per se under Rule 5 of the CENVAT Credit Rules, 2004 and hence, the same ratio is not applicable to a refund of duty arising on account of non-fulfilment of export obligation under Advance Authorization. 7. In rejoinder, Ld. Advocate would submit that the Advance Licence was always renewed and there is no finding by the lower authorities as regards the lapse of the period prescribed for export. Moreover, he would submit, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Legal Undertaking (LUT)/Bank Guarantee (BG)/Bond with the Customs Authority, as prescribed, before clearance of goods. 9.2 Further, there is no dispute that the above is guided by the Handbook of Procedure ( HBP for short) and paragraph 4.50 of the HBP prescribes the payment of Customs Duty and interest in case of bona fide default in export obligation (EO), as under : (a) Customs duty with interest as notified by DoR to be recovered from Authorisation holder on account of regularisation or enforcement of BG / LUT, shall be deposited by Authorisation holder in relevant Head of Account of Customs Revenue i.e., Major Head 0037 - Customs and minor head 001-Import Duties in prescribed T.R. Challan within 30 days of demand raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of non-fulfilment of export obligation, which drives an assessee to paragraph 4.50 of the HBP whereby the payment of duty has been prescribed in case of bona fide default in export obligation, which also takes care of voluntary payment of duty with interest as well. Admittedly, the inputs imported have gone into the manufacture of goods meant for export, but the export did not take place. At best, the appellant could have availed the CENVAT Credit, but that would not ipso facto give them any right to claim refund of such credit in cash with the onset of G.S.T. because CENVAT is an option available to an assessee to be exercised and the same cannot be enforced by the CESTAT at this stage. 12. There is no question of refund and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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