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TMI Blog2022 (5) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... y due on such waste. This automatically will take care of such accumulated credit. Hence we find that excess waste generated cannot be a norm for denial of such credit. There are no merits in the impugned order. Even the appeal filed by Revenue is not sustainable for this reason only. Reliance can be placed in the case of M/S ASIL INDUSTRIES LTD VERSUS CCE, JAIPUR I [ 2015 (2) TMI 747 - CESTAT NEW DELHI ] where it was held that The appellant would be eligible for cash refund of the accumulated Cenvat credit taken in respect of inputs which have been used in the manufacture of goods which has been exported under bond/LUT and in this case, cash refund can be disallowed only to the extent the cenvated inputs are contained in the scrap c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for standard input-output norms (SION) (5%). 2.4 In appeal, the Commissioner (Appeals) modified the order of the adjudicating authority by accepting the plea that the adhoc scrap generation ratio, i.e. input output norms for the appellant-assessee were fixed by the Development Commissioner vide letter dated 23.05.2007 and thereafter approved by the Board of Approval on 10.09.2008. He allowed refund based on the approved input output norms w.e.f. 24.04.2007 (the date when the appellant-assessee filed application before the Development Commissioner for fixation of such norms). 2.5 Aggrieved by the impugned order, the appellant-assessee filed these appeals. 2.6 As per Revenue, the date from which the Commissioner (Appeals) has allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilize. Accordingly the refund application should have been allowed in toto. 3.3 Learned counsel relies upon the following decisions: Kochar Sung-Up Acrylic Ltd. [2008 (225) ELT 68 (Tri.- Del.)] Philco Exports Ltd. [2013 (291) ELT 575 (Tri.-Del.)] ASIL Industries Ltd. [2015 (325) ELT 154 (Tri.-Del.)]. 3.4 Arguing for the Revenue, learned AR reiterates the findings recorded by the Commissioner (Appeals) and those stated by the Revenue in their appeal before the Commissioner (Appeals). 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of hearing. 4.2 The issue involved in the present case is in relation to refund application under Rule 5 of the Cenvat Credit Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax on any output service. Explanation : For the purposes of this rule, the words output service which is exported means the output service exported in accordance with the Export of Services Rules, 2005. 4.3 Further, para 4 of Notification No. 05/2006-CE(NT) dated 14.03.2006 reads as follows:- 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule 3 of the said rules against goods and taxable services exported during the quarter or month to which the claim relates . 4.4 From a perusal of Rule 5 of Cenvat Credit Rules and Notification No.05/2006, the only conditions requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manufacture of final products which was cleared for export. There is no ground to deny the refund of credit in respect of inputs attributable to waste generated during the manufacture of such goods specifically in absence of any provisions under the Rules. I find no merit in the appeals. The same are dismissed. Philco Exports Ltd. [2013 (291) ELT 575 (Tri.-Del.)]. Para 8 of the said decision reads as follows:- 8 . It can be seen that provisions of Rule 5 of Cenvat Credit Rules, 2002 was not considered by the learned Commissioner (Appeals) or by the adjudicating authority in the proper perspective, as the said Rule 5 does not contemplate the reduction of the refund claim of an amount of credit availed and lying in the bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the Central Government by notification issued in this regard. In this case there is no dispute that the conditions prescribed in the notification issued under this Rule and also the conditions of the exports not having been made by claiming duty drawback or input duty rebate stand satisfied. The only dispute is as to whether the duty payable on the scrap cleared for home consumption during the quarter to which the refund claim pertains and also whether the amount recovered from the customers as duty on the sale of waste and scrap during the period from January, 2003 to 30th June, 2004 can be deducted from the refund. In our view for these deductions there is absolutely no authority. The appellant would be eligible for cash re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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