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TMI Blog2008 (12) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Shri T.R. Rustagi, Advocate, for the Appellant. Shri S.K. Panda, JCDR, for the Respondent. [Order]. - The Appellant manufacture several medicines. One of the medicine being manufactured by them is fully exempt from duty under Notification No. 6/02-C.E., dt. 1-3-02 and the other medicines are dutiable. The exempted medicine is exclusively exported. However, the Appellant had taken Cenvat credit of duty on the inputs which go into manufacture of dutiable as well as the exempted medicines and also on the inputs which are exclusively used in the manufacture of exempted medicine. The Asstt Commissioner vide order-in-original dt. 25-5-06 confirmed demand of Rs. 2,60,626/- against the Appellant and imposed penalty of Rs. 50,000/- un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal's judgment in the case of CCE, Surat-II v. Nemlaxmi Book (I) Pvt. Ltd. reported in 2007 (144) ECR 421 were cited wherein it was held that when the exempted goods were exported out of India, the refund of Cenvat credit of duty on inputs and packing materials would be available. 3. Shri S.K. Panda, the learned JCDR pleaded that in this case the Appellant should have, from the very beginning, declared as to which finished products would be exported by him and which would be cleared for home consumption and separate inventory and account of the inputs to be used for goods meant for export and the inputs to be used for the goods to be cleared for home consumption should have been maintained and since no such declaration has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined under Rule 2(d) of Cenvat credit Rules. Sub-rule 5 of Rule 6 clearly states that the provisions of sub-rule 1, 2 3 shall not be applicable to the exempted goods exported out of India under bond without payment of duty. Since the goods, in question, are exempted goods and have been exported, the provisions of sub-rule 5 become applicable and therefore, neither sub-rule 1 would be applicable nor sub-rule 2 3 of Rule 6, would be applicable. I am supported in this view by the judgments of this Tribunal in cases of Jobelle v. CCE, Mumbai (supra) and CCE, Surat-II v. Nemalaxmi Book (I) Pvt. Ltd. (supra). In view of this, the impugned order is not sustainable and the same is set aside. The appeal is allowed with consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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