TaxTMI 
TaxTMI 
2009 (10) TMI 734
X X X X Extracts X X X X
X X X X Extracts X X X X
....istrict of Gujarat State. 2. The appellants had filed the refund claim of Rs. 1,57,65,253/- & Rs. 7,01,22,166/- respectively for unspent Cenvat credit balance, on account of export effected under Letter of Undertaking without payment of duty, under Rule 5 of Cenvat Credit Rules, 2004 for the periods from October, 2007 to December, 2007 and January, 2008 to March, 2008 respectively. 3.1 It was observed that second proviso to sub-rule (4) of Rule 3 of Cenvat Credit Rules, 2004 reads as under : "3. Cenvat credit. - (4) The Cenvat credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to Cenvat credit taken on Inputs if such in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to be rejected. Accordingly, two different Show Cause Notices both dated 21-11-2008 covering above two refund claims were issued by the Assistant Commissioner, Central Excise, Gandhidham (hereinafter referred to the as the Lower Authority). 3.3 The said two Show Cause Notices dated 21-11-2008 were adjudicated by the Lower Authority vide Order-in-Original Nos. 14 and 15/2009-2010 dated 20-4-2009 (hereinafter referred to as the impugned order) wherein it was held that the refund is not admissible since second proviso to Rule 3(4) of the Cenvat Credit Rules, 2004 is very clear for the units working under Notification No. 39/2001-C.E., dated 31-7-2001, as amended, are concerned and he further held that Rule 5A of the Cenvat Credit Rules, 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it that has been accumulated due to exports under bond/LUT, during the period Oct., 07 to March, 08. 4.2 The appellants further stated that the denial of refund by the department alleging that Cenvat credit cannot be claimed as refund and should be only used for payment of duty, shows poor understanding and mis-interpretation of statutory rules, on the part of the department; that Rule 3 of Cenvat Credit Rules, 2004, does not speak of refund at all; that Rule 3(4) of Cenvat credit Rules, prescribes the manner in which the Cenvat credit can be utilized; that Refund of Cenvat credit is covered by a separate Rule 5 of Cenvat Credit Rules, 2004 therefore it is not understood why the department should interprete Rule 3(4) of Cenvat Credit Rul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingredients of Rule 5 of Cenvat Credit Rules, 2004 have been satisfied by them; that as per Rule, the refund is allowed only if the credit has been accumulated due to export of final products under Bond/LUT or due to providing output service which is exported and if such credit cannot be utilized for payment of duty on domestic clearances or on export clearances under claim of rebate or for payment of Service tax; that no refund of credit is allowed if the manufacturer avails of draw back allowed under Customs & Central Excise Duties Draw Back Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002 in respect of such duties; that appellant submits that they have neither availed drawback nor exported under claim of rebat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ltd. cited in 2006 (201) E.L.T. 559 (Kar.) = 2008 (10) S.T.R. 101 (Kar.) which has been held by Hon'ble Supreme Court, in the decision cited in Union of India v. Slovak India Trading Co. Pvt. Ltd. - 2008 (223) E.L.T. A170 (S.C.). 5. The matter was fixed for personal hearing on 20-7-2009 and on 9-9-2009 which was attended by S/Shri Paras Mal Jain & Sandeep Jathalia of the appellant along with Shri R. Subramania, Advocate of M/s. Swami Associates, The representatives reiterated the submissions and also submitted a copy of Board letter F. No. 101/6/2009-CX. 3, dated 3-6-2009 for consideration. 6. I have carefully gone through the case records, appeal memorandum and the submissions made during the course of personal hearing. I find that s....