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TMI Blog2024 (7) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE (NT) dated 14.03.2006 in respect of unutilized balance of Cenvat Credit and refund in respect of Service tax on services utilized for export of goods as per the provisions of Notification No. 41/2007 dated 06.10.2007. The said refund claim were rejected by the adjudicating authority under OIO No. 7/S.Tax/Ref/Kadi/07-08 dated 31.03.2008. However, on appeal filed by the appellant against the said OIO, Ld. Commissioner (Appeals) vide OIA dated. 05.09.2008 allowed the appeal with consequential relief and remanded the case back to original adjudicating authority. However department preferred an appeal against the said OIA dated 05.09.2009 before the Tribunal. In course of fresh adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions, the matter was taken up for de -novo adjudication by the Assistant Commissioner. The said issue has been decided by the Assistant Commissioner under OIO dated 25.03.2015 wherein it has been found that an amount of Rs. 55,88,459/- pertains to the period prior to 14.03.2006 i.e. introduction of Notification No. 5/2006-CE (NT) and as such the refund of the same would not be admissible. Accordingly, the refund claim of Rs. 55,88,459/- has been rejected under the aforesaid OIO. Being aggrieved by the order-in-original dated 25.03.2015 the appellant filed an appeal before the Ld. Commissioner (Appeals) which is currently pending. 1.4 The Ld. Commissioner vide impugned Order No. EXCUS-003-COM-004-15-16 dated 31.07.2015. adjudicated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund cannot be denied once the core fact of export is not in dispute. He placed reliance on the following judgments:- Universal Enterprises Vs. GOI -1991(55)ELT 137 (GOI) Poulose Mathew Vs. CCE 1989(43)ELT 424 (Tri.) (iii)Madras Process Printers 2006(204) ELT 632(GOI) Barot Exports -2006(203)ELT 321 (GOI) CCE Vs. Binny Ltd. - 1987(31)ELT 722(T) Krishna Filaments Ltd. -2001(131)ELT 726(GOI) Modern Process Printers 2006(204)ELT 632(GOI) CCE, Bhopal - 2006(205)ELT 1093 (GOI) Cotfab Exports-2006(205)ELT 1027(GOI) Atma Tube Products Ltd. Vs. CCE 1998(103)ELT 270(T) Synthetics and Chemicals Ltd. Vs. CCE 1997(93)ELT 92 (T) Apha Garments Vs. CCE 1996(86)ELT 600(T) 3. On other side Shri Rajesh R Kurup, Learned Superinte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 2008 (10) S.T.R. 273 (T) = 2008-TIOL-228-CESTAT-Mum. held that substituted Rule 5 will be applicable for the export of services prior to 14-3-2006. In that decision the Tribunal has held as follows :- "10................ We, therefore hold that in present circumstances, where the refund claims were filed after the amendment, and satisfies every requirement of Rule 5 and the Notification issued thereunder, the refund cannot be rejected as there was no condition in the notification or rules that such notification would apply only in respect of the exports made after 14-3-2006. Once the refunds are under the amended rules and the Notification issued thereunder, as already held, the same cannot be denied merely because they relate to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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