TaxTMI 
TaxTMI 
2010 (11) TMI 657
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....the Central Excise Tariff Act, 1985 and availing Cenvat Credit facility under Rule 3 of Cenvat Credit Rules, 2004. The appellant filed an refund claim on 29-12-2009 for the quarter April 2009 to June 2009 of un-utilised/accumulated Cenvat Credit balance of Rs. 1487497 under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 05/2006- C.E.(N.T.) dated 14-3-2006 as amended, the Appellant for the manufacture of above said finished goods, have purchased raw material viz. OCCN (Ortho Cholo Benzyl Cyanide). Caustic Soda Flakes. Caustic Soda Lye, PED, HCL, Acetic Anhydride & Lube Oil from various domestic suppliers on payment of duty. The appellant filed the refund claim under Rule 5 of (Cenvat Credit Rules, 2004 on the ground that since the export under Bond is more in comparison to domestic sale, there is accumulation of Cenvat Credit in their Cenvat Credit Account. 3. The lower authority had verified documents on report .given by the Range Officer in view of the statutory provisions of Rule 5 of Cenvat Credit Rules, 2004. The Range Officer has reported that the Appellant has taken excess Cenvat Credit of Rs. 4267. The lower authority has found that the Cenvat Credit ....
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....ons, Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 provides the conditions, safeguards and limitations for obtaining refund of such credit. The said Notification nowhere prescribes for calculating the proportionate Cenvat credit on the inputs used in making exported final goods, as wrongly applied by the adjudicating authority. * Recently CBEC in its Circular No. 120/01/2010-S.T., dated 19-1-2010 clarified on the problems faced by exporters in availing refund of excess credit under Rule 5 of the Cenvat Credit Rules, 2004. The relevant extract is reproduced as follows : 3.1.1 The primary objection indicated by the filed formations is that the language Notification No. 5/2006-CX. (N.T.) permits refund only for such services that are used in providing output services. In other words, the view being taken is that to be eligible for refund, input services should be directly used in the output service exported. As regards the extent of nexus between the inputs/input services and the export goods/services. It must be borne in mind that the purpose is to refund the credit that has already been taken. 3.3 Quarterly refund claims ....
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....tral Excise having jurisdiction over the factory of manufacturer intending to lake credit is satisfied that duty that the goods......... covered by the said document have been received and accounted for in the books of the account of the receiver. Such Assistant commissioner has a power to allow the credit by recording the reasons for allowing the credit in each case. Position of law w.e.f. 1-3-2007 Rule 9(2). No CENVAT credit under sub-rule(1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994, as the case may be are contained in the said document : Provided that if the said document does not contain all the particulars but contains the details of duty............,/description of the goods.......,/ assessable value. Central Excise......../registration number of the person issuing the invoice, as the case may be, name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, is satisfied that the goods ....... covered by the said doc....
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....S.T.R. 85 (P&H) (d) Crop Healthcare Product Ltd. v. Col CCEx - 1998 (102) E.L.T. 376 (Tri.) * They attach herewith copies on input excise invoices, extracts if inward gate register, GRR & issue slips for satisfying the conditions mentioned above as Annexure-2, thus Cenvat credit be allowed to us by condoning this lapse of the part of M/s. Grasim Industries Ltd. is not mentioning the plot No. B-24 & 25 during the beginning of the factory. The impugned order does not dispute input as having received and accounted for in appellant's books of the account. * Without prejudice to above submissions, appellants further submit that VAT is consumption tax to be borne by the ultimate consumer & is not a charge on business. They wish to rely on judgment of Hon'ble Bombay High Court in the case reported as Coca Cola India Pvt. Ltd. v. CC, EX., Pune-III - 2009 (242) E.L.T. 168 (Bom.) = 2009 (15) S.T.R. 657 (Bom.) * Thus if the Cenvat credit is disallowed to appellants, they would be directly hearing the tax instead of their consumer. This will result into levying Excise duty on the tax (ce....
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....5 of CENVAT Credit Rules, 2004 provides that such accumulated credit can be refunded to the exporter subject to stipulated conditions. Notification No. 5/2006-C.E. (N.T.) dated 14-3-2006 provides the conditions, safeguards and limitations for obtaining refund of such credit. The said notification nowhere prescribes for calculating the proportionate Cenvat credit on the inputs used in making exported final goods, as wrongly applied by the adjudicating authority. 8.2 In the instant case. I find that the lower authority has considered the lowest rate for ascertaining the rate to determine the assessable value of the inputs consumed by the Appellant in manufacturing of their final product and subsequently exported by them. Accordingly, the refund claim restricted to the extent of Rs. 1312752. Further I find that neither Rule 5 of Cenvat Credit Rules, 2004 nor Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 has stipulated that the refund claim has to be restricted by considering the lowest rated invoices for ascertaining the value of inputs used in export and based on such value only, the cenvat credit is to be refunded in cash. The notification nowhere stipulates any condi....