9911796707
TMI Blog2008 (3) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... l Gupta, CS, for the Appellant. Shri. Sumit Kumar, DR, for the Respondent. [Order] - These two appeals by the assessee arising from common order of the Commissioner (Appeals) are disposed of by this common order. 2. As a matter of fact, by the order-in-appeal three appeals-two preferred by the appellant herein; and one by M/s Malbros Stone Exports, were disposed of. The appeal filed by M/s Malbros Stone Exports before this Tribunal being Appeal No. E/1294/07 has been allowed by Single Member Bench on 21.06.2007 holding that the findings of the Commissioner (Appeals) are illegal, while the order of the original authority was in accordance with rules. The impugned order being common, in the ordinary course, I should have simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of rule 5 of the Cenvat Credit Rules, they are entitled to refund of the amount paid as service tax. 4. Rule 5 of the Cenvat Credit Rules provides that where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of (i) duty of excise on any final products cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the table below…………..from so much of the duty of excise leviable thereon under Section 3 of the Central Excise Act as specified in the corresponding entry in column (4) of the said Table." 6. It was submitted that in accordance with the formula laid down in the Notification, the liability of the appellant works out to Rs. 4.50 being 30% of the then prevailing rate of customs duty and, therefore, it cannot be said that the slates/sand stones/tiles manufactured by the appellant were exempted goods. 7. It is relevant to mention here that though, ordinarily, all goods included in the First and the Second Schedule to the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Malbros Stone Exports was allowed without taking into consideration Rule 6(1) of the Cenvat Credit Rules. Perhaps I would have considered referring the case to a Larger Bench. However, it is not necessary to take that course. Hence the goods manufactured by the appellant, namely, slate/sand stone despite the exemption granted by Notification No. 23/03-CE dated 31.03.2003 is allowable to pay duty @ 4.50% in the then prevailing rate of customs duty @15%. In other words, the provisions of Rule 6(1) of the Cenvat Credit Rules do not stand in the way of the appellant. That being the provision, the appellant was entitled to refund of the cenvat credit on such quantity of cenvat credit which could not be adjusted. It may be noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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