2010 (5) TMI 486

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....porters for export of goods and subsequently they filed two refund claims for amount of Rs. 62,839 and Rs. 1,36,920 under rule 5 of Cenvat Credit Rules, 2002 for refund the accumulated Cenvat credit in respect of those clearances on the ground that the Cenvat credit accumulated on account of export clearances could not be utilized for payment of duty on domestic clearances. The refund claim were sanctioned by the Assistant Commissioner vide memorandum dated 28-12-2002 and 25-6-2003. However, subsequently a show-cause notice dated 26-12-2003 was issued for demand of these refunds on the ground that the same has been erroneously given as the goods cleared by the appellant through merchant exporters had been exported under drawback claim by th....

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....il refund/rebate even if the merchant exporter had claimed full drawback and in the present case neither there is anything on record to show that  he merchant exporter had availed only the customs duty drawback nor the appellant had produced any documents to prove the same. It is against this order of the Commissioner (Appeals) that the present appeal has been filed. 2. Heard both the sides. 2.1 Shri Bipin Garg, Advocate, the learned Counsel for the appellant, pleaded that the goods had been cleared by the appellant under bond for export under CT-1 certificate produced by merchant exporter, that the merchant exporter had exported the goods under drawback claim claiming drawback at an 'all industry rate' fixed by the Government-Rs. 4 ....

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....claimed, the cash refund of the accumulated Cenvat credit will not be available and that in view of this, the impugned order is correct. 3. I have carefully considered the submissions from both the sides and perused the records. In this case, there is no dispute that the goods cleared without payment of duty for export had been exported under drawback claim. The point of dispute as to whether in such a situation, the appellant who as manufacturer cleared the goods without payment of duty against the CT-1 certificate produced by merchant exporter, would be eligible for the cash refund of the accumulated Cenvat credit. 3.1 In terms of rule 5 of the Cenvat Credit Rules, 2002 :- "Where any inputs are used in the final products which are clea....