TaxTMI 
TaxTMI 
2010 (5) TMI 451
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....ts, have been ordered to be dropped. The miscellaneous application No. 1080 of 2009 is for the relief of early hearing of the appeal. The miscellaneous application No. 373 of 2010 is at the instance of the respondents seeking to vacate the order granting stay on 13th April, 2010. 4. The Department had issued show cause notices, referred to above, demanding sum of Rs. 14,04,09,663/-, being the opening balance as on 1st March, 2008, under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11-A of the Central Excise Act, 1944, from the respondents on the ground of violation of Rule 11(3)(ii) of the Cenvat Credit Rules, 2004; sum of Rs. 27,43,50,554/- on account of wrong availment of the Cenvat Credit for the period from March to July, 2008; sum of Rs. 24,74,15,042/- also on the ground of wrong availment of Cenvat Credit for the period from 1st August to 30th November, 2008 besides interest on the said amount of Rs. 24,74,15,042/-, and further the respondents were also required to show cause as to why penalty should not be imposed upon them. In addition, there was a demand of Rs. 11,13,07,967/- on the ground of wrong availment of Cenvat Credit for the period from 1st D....
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....10 dated 22nd March, 2010. 7. The learned advocate for the appellant also submitted that, considering the above aspects of the matter, the Tribunal by order dated 13th April, 2010 had granted the stay while rejecting the request by the respondents for adjournment. 8. On the other hand, the learned advocate appearing for the respondents submitted that, the impugned order does not refer to the issue of the refund claim and it strictly deals with the issues which were specifically framed and enumerated under para 29 of the impugned order. As regards the orders passed by the Bombay High Court and Delhi High Court, he submitted that they are essentially on the point of entitlement for the Cenvat Credit and there may be some incidental findings on the point of refund, as a result the claim for entitlement to avail Cenvat Credit being answered in favour of the assessee. Drawing our attention to the order passed by the Commissioner (Appeals) on 22nd March, 2010 and the date of the impugned order, it was sought to be contended on behalf of the respondents that, even prior to the passing of the impugned order, the respondents had applied for refund and that was granted and ....
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.... the impugned order and particularly para 29 thereof discloses that, the learned Commissioner after noting the rival contentions had summarized the points of disputes which were required to be decided in the matter and it was observed that those are the issues which require consideration in the said case. The issues which are enumerated in para 29 are as under : "(a) Whether the dutiable products such as flavouring materials were unintended by-products for the Noticee M/s. Sharp Menthol (India) Ltd., as alleged in SCN? (b) Whether the duty paid inputs were being received by the Noticee for use in the manufacture of final product exempted absolutely under Section 5A of the Act? (c) Whether the noticee was required to reverse the Cenvat Credit under sub-rule (1) of Rule 6 read with Rule 11(3)(ii) of CCR, 2004 on the inputs contained in the finished/intermediate exempted goods and exempted inputs lying in stock as on 29-2-2008, as requested by Revenue vide letter dated 3-3-2008? And whether Rule 6(1) and 6(3) were applicable at all in the facts of the case? (d) Whether the Noticee was requi....
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....isions of Rule 6(6)(v) are the specific rules, which covers the situation as in the instant case." 14. The decision which has been referred to in para 37 is in the matter of CCE, Delhi-I v. Punjab Stainless Steel, reported in 2009 (234) E.L.T. 605 (Del.). The same is on the point of entitlement of the manufacturers for credit in respect of inputs used in exported goods, whether exempted or dutiable, and it has been held that the assessee therein could opt either to claim drawback or to claim refund of such credit, but he cannot avail both the remedies and that in the facts of that case, since the assessee had claimed refund, he was not entitled for the claim of drawback. In those circumstances, it was held that, there was no substantial question of law arisen for reference to the High Court. 15. As far as the decision of the Bombay High Court in Repro India Ltd. v. Union of India, reported in 209 (235) E.L.T. 614 (Bom.), referred to in para 35, is concerned, the same is on the point that if the exempted products are exported outside India, the provisions of Rule 6(6)(v) of Cenvat Credit Rules, 2004 are attracted and in those circumstances bar provided under Rule 6....