2009 (10) TMI 779

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....was for Rs. 3,24,791/- were made. Both claims were rejected and the matter reached Tribunal. Tribunal, vide Order No. 471-472/04-NB(C), dated 6-7-04 [2004 (178) E.L.T. 429 (Tri.-Del.)] allowed both the appeals. ROM application filed by the Revenue was rejected on the ground of delay and the appeal filed by the Revenue against this decision before Hon'ble High Court of Gujarat was dismissed [2008 (221) E.L.T. A81 (Guj.)]. The original adjudicating authority instead of sanctioning full refund as per the directions of the Tribunal in the remand order, rejected the second claim of Rs. 3,74,791/-. On an appeal filed by the appellant, the same was rejected. 2. No one appeared for the appellant. However, Shri Naveen Mallick, learned advocate has ....

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....y sub-rule (2) of Rule 57A of the Central Excise Rules, 1944. This Notification allowed the credit of declared duty in respect of the inputs specified in the notification and the credit so allowed shall be utilised only towards payment of duty of excise leviable under the Central Excise Act on the specified final products. However, proviso to paragraph 3 of the Notification provides that where, for any reason, that the credit of duty in respect of inputs used in the final products cleared for export under bond cannot be used towards payment of duty of excise on any final product cleared for home consumption or for export on payment of duty, the said credit shall be refunded to the manufacturer subject to such safeguards, conditions and limi....

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....ccumulated in their accounts, goes to show that they were not in a position to utilise the same towards payment of duty on their specified final products. It is not disputed by the Revenue that the goods have been exported by the appellants and the inputs were utilised in the manufacture of goods so exported. It is also not in dispute that the amount of Modvat credit, of which refund has been sought, was lying unutilised in their books of accounts. No evidence has also been brought on record to show that the amount of Modvat credit does not relate to the inputs used in the manufacture of goods exported out of India. In view of these facts and circumstances, the refund cannot be denied to them merely on the ground that the appellants could h....

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.... in this regard. The appellant's only stand is that since Hon'ble Tribunal has set aside earlier orders of rejecting refund, they must be paid the amount of refund. Failure of the appellant to state the facts as regard to manner of exports (whether under bond or under claim of rebate) gives rise to reasonable presumption of existence of fact that goods were exported under claim of rebate as recorded by the original authority. Clause (g) of Section 114 of the Indian Evidence Act, 1872 is relevant in this regard which reads as under : "that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." 7. Appellant has failed to establish the fact claimed by them before the Hon'ble Tribunal ....