TaxTMI 
TaxTMI 
2010 (3) TMI 989
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....s and fabrics falling under Chapters 54, 55, 59 and 60 of CETA, 1985, filed five refund claims, claiming refund of unutilized Cenvat credit of NCCD paid on inputs and however, remained unutilized as their final products viz. Chenille fabrics and MM fabrics are not attracting the NCCD and that their major clearances are for export; that on scrutiny of all refund claims, five SCN were issued with proposal to reject the refund claims amounting to Rs. 6,08,319/- on the ground that the duty of NCCD paid on inputs were not used in export of goods under Letter of Undertaking/ Bond and the said refund of NCCD is not envisaged under Circular No. 701/17/2003-CX., dated 12-3-2003; that it was further alleged that the said circular allows refund of acc....
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.... after dealing with the said allegation permitted the refund of AED (T&TA) under Cenvat Rule 5 and hence, ignoring the above decision is not tenable; (iv) that without prejudice to the above, the appellant submits that in the following decisions, the issue has been fully settled. But the Deputy Commissioner did not give any findings which is nothing but mockery of judicial principles. (a) CCE, Mumbai-III v. D.C. Polyester P. Ltd. - 2004 (166) E.L.T. 472 (Tri.-Mum.), (b) CCE, Mumbai-III v. D.C. Polyester P. Ltd. - Order No. C-IV/1220-21/WZB/03 dt. 21-11-03 [2004 (176) E.L.T. 471 (Tribunal)] (c) CCE, Mumbai-III v. Virender Processors P. Ltd. - Order No. S/205, 206/WZB/04/....
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....g authority has rejected all the five refund claims totally amounting to Rs. 6,08,319/- on the ground that utilization of Cenvat credit availed on NCCD has been restricted towards payment of NCCD only and only in case where cenvat has not been restricted, the accumulation of Cenvat credit is envisaged for refund under Rule 5 of the Cenvat Credit Rules, 2004; that he has further held that Cenvat credit accumulation should be on account of inputs used in the manufacture of goods cleared for export under bond/Letter of Undertaking and in the instant case, the appellant has claimed refund on the goods cleared for export under rebate and refund of Cenvat credit accumulated on the above ground is not envisaged under Rule 5 of the Cenvat Credit Ru....
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.... cannot be considered, since the Board's Circular (supra) relates to refund of un-utilized credit which is not restricted and further held that the refund of un-utilized credit under Rule 5 is not available in the cases, where the goods are exported under rebate. The issue is no more res-intergra in view of the various decisions supported by the Board's Circular dated 12-3-2003 (supra). The Tribunal Mumbai in the case of CCE v. D.C. Polyester Pvt. Ltd. held that "Board's Circular No. 701/17/2003-CX dated 12-3-2003 allows refund of un-utilized credit of Additional Duty of Excise (Goods of Special Importance) on export of the finished goods even if such finished goods are not subjected to levy of the said additional duty - Department's appeal....