2008 (7) TMI 340

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..... detail by following Instructions of the Board issued in 2007 regarding place of removal
Shri B.S.V. Murthy, Member (T) S/Shri Uday Joshi and Hardik Gupta, Advocates, for the Appellant. Dr. M. K. Rajak, SDR, for the Respondent. [Order]. - This appeal has been filed against the decision of the Commissioner (Appeals) disallowing refund claim filed by the appellant who are 100% EOU and have exported 100% of their clearances. The refund claims have been rejected on the grounds that in ARE-1, a declaration was made that Cenvat credit has not been availed by the appellant and the input services utilized by the appellant have been utilized after the place of removal and therefore the refund of Cenvat credit of service tax paid on input servi .....

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..... the claim has been made as per the procedure prescribed. In the case of Navbharat Industries v. CCE, Thane 2006 (199) E.L.T. 148, it was held that refund cannot be denied on the ground that it may be possible to use accumulated credit at a future date. 3. Learned SDR submits that the declaration required to be made in ARE-1 is very important and once the declaration is made, it is final. He also submits that the appellant have not maintained proper record as observed by the original adjudicating authority. He also submitted that the refund claim for May, '06 was not admissible since there was no export during the period. For that he also submitted that the correctness of the service tax paid on input services and eligibility for refund the .....

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..... Even if drawback has been sanctioned by mistake, in case of exporter wherein the declaration in ARE-1 has been made stating that the credit has been availed, if it is actually found that credit was not availed, the drawback cannot be denied and should not be denied. 5. As regards input services, the Commissioner (Appeals) simply stated that they are not eligible for the refund, on the ground that credit itself is not admissible, since the services have been utilized for post removal activity. He also submits that no verification has been carried out and no details have been given. 6. In view of the above discussion, I conclude that the appellants are eligible for refund claim subject to the condition that Cenvat credit taken by them is a .....

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