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TMI Blog2021 (8) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... DER The issue in this appeal is whether the court below has rightly allowed the refund of cenvat credit of AED (T TA) under Rule 5 of CCR, in proportion of export turnover, thereby allowing refund of ₹ 13,17,148/- instead of the claimed amount of ₹ 22,54,910/-. 2. The brief facts are as under:- M/s. RSWM Limited were availing cenvat credit on Polyester/Viscose/Arylic Fibres used in the manufacture of their final products. Both the inputs as well as final products of the unit were chargeable to Additional Excise Duty (Textile Textile Articles) under Additional Duties of Excise (Textile Textile Articles) Act 1978, till 08.07.2004, and later vide Notification No.31/2004-CE dated 09.07.2004, the said goods were exempted from AED (TTA) w.e.f. 09.07.2004. On the date of exemption, the respondent had a balance of AED (T TA) of ₹ 27,25,433/-. 2.1 In March, 2005, the respondent debited ₹ 2,31,85,989/- from their Cenvat Credit Account with remark -- Cenvat Credit reversed by us vide notification No.41/2001 dated 26.06.2001 , and filed three rebate claims of the above said amount which included AED (T TA) of ₹ 22,54,910/-, under Rule 18 of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-credit taken in November, 2010. 2.6 The Order-in-Original No.91/Refund/16 dated 14.10.2016 was reviewed by the Commissioner of Central Excise, Jodhpur under the powers conferred under Rule 35 E of the Act. Based on the order dated 26.12.2016 issued by the competent authority and the directions contained therein., the Asstt. Commissioner filed an appeal stating therein that the Adjudicating Authority has erred in sanctioning the entire refund claimed, as an amount of ₹ 8,84,762/- was not admissible being in respect of AED involved on raw materials used in the manufacture of finished goods which were cleared domestically, and not exported. The following details were given in the appeal for above quantification:- (i) As per details submitted by the claimant, the claimant had exported 1,88,475.80 kg. finished goods after 08.07.2004, which were lying in their finished goods stock as on 08.07.2004 and which were manufactured out of those inputs on which duty of AED (T TA) was paid by the claimant. The claimant had used input materials 1,93,188 kgs. involving AED ₹ 3,82,512/- for manufacturing of 1,88,475.80 kgs. exported finished goods. 3. Ld. Commissioner, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty of excise on any final product cleared for home consumption or for export on payment of duty. The eligibility of the impugned cliaim could be verified under Rule 5 of the Rules only after verification of the relevant records and details to be submitted by the respondent. It is evident that the adjudicating authority did not call for the records to compute the AED (T TA) and simply sanctioned the credit taken in November, 2010. If no verification was required, Hon ble CESTAT would have done that at that stage itself. It was after the passing of the order, the departmental authorities called for the relevant records which were submitted by the respondent vide letter dated 25.11.2016, 15.12.2016 and 23.12.2016 to the department and based on their verification, has computed the following:- (i) the quantum of finished goods in stock as on 8.7.2014 which were manufactured out of inputs on which AED was paid to the extent of ₹ 3,82,512/- (ii) the quantum of inputs and the AED (T TA) involved therein amounting to ₹ 4,69,009/- as on 8.7.2014 which were used in manufacture of finished goods exported after the said date (iii) the inputs which were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: 6. Further, CBEC vide Instructions No.267/11/2003-CX8 dated 22.03.2007, clarified that unutilised intermediate credit of AED (T TA) can be claimed as refund under Rule 5 of CCR. Further, Board s Circular No.701/17/2003-CX dated 12.03.2003 clarifies that refund of AED (GSI) shall be allowed under Rule 5 of CCR, 2002 regardless of the fact that the said duty is not leviable on the finished products, has been made applicable to the AED (T TA). 7. Thus, it is further urged that from perusal of Rule 5 of CCR read with the aforesaid two circulars, it is evident that there is no restrictions on the amount of refund of cenvat credit, which has remained un-utilised. Neither Rule 5 of CCR nor the aforesaid circulars provides for proportionate calculation of refundable amount, being proportionate export turnover to the total turnover. Hence, in the impugned order, the Commissioner (Appeals) has erred in reducing the refund amount, on proportionate basis, by colourable exercise of pow ..... 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