TaxTMI 
TaxTMI 
2014 (7) TMI 779
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....iled on input service used in the export of goods in terms of Notification No.5/2006-CE (NT) dated 14.3.2004 issued under Rule 5 of CENVAT Credit Rules, 2004. Show-cause notice dated 22.11.2006 was issued proposing to reject the refund claim under Rule 6 of the CENVAT Credit Rules, 2004 r/w Section 11B of the Central Excise Act, 1944. It has been alleged that the appellant is manufacturing exempted goods and they are not eligible to avail CENVAT credit under Rule 6 of the CENVAT Credit Rules, 2004. The adjudicating authority rejected the refund claim. By the impugned order, the Commissioner (Appeals) upheld the adjudication order. 2. The learned counsel on behalf of the appellant submits that show-cause notice proposed to reject the refu....
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....the scope of the show-cause notice. He further submits that the LUT was not renewed and sub-rule 6(v) of Rule 6 would not apply. He further submits that there is no material to draw that they have not filed the drawback claim including the input service credit. It is also submitted that there is no evidence available whether the drawback has been availed under bond or not. He further submits that the execution of LUT is a mandatory condition which cannot be taken lightly and the decision of Well Known Polyesters Ltd. (supra) would not apply. 4. After hearing both sides and on perusal of the records, I find that the appellant filed the refund claim under Rule 5 of the CENVAT Credit Rules, 2004. The relevant portion of Rule 5 as it stood d....
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....ules, 2004. On a plain reading of the words 'in respect of such duty' in the First proviso to Rule 5 makes it clear that no refund of such credit shall be allowed in respect of such duty, if the manufacturer or provider of output service avails drawback allowed under Customs and Central Excise Duties Drawback Rules, 1995. In the present case, the appellant filed the refund of credit in respect of input service credit. It is contended by the learned AR on behalf of Revenue that there is no evidence available that the drawback claim would not be included with the input service credit. The word 'drawback' defined under Rule 2(a) of Customs and Central Excise Duties Drawback Rules, 1995, as it stood during the relevant period as drawback in rel....
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....T. Since the appellant is availing full exemption and not even registered and the exempted goods were not exported under bond, refund has been denied. This issue was considered by the Hon'ble High Court of Himachal Pradesh in the case of CCE v. Drish Shoes Limited - 2010 (254) E.L.T. 417 (HP) and the Hon'ble High Court held that refund of input credit is admissible when exempted goods are exported without execution of bond. Similar was the view taken by the Hon'ble Bombay High Court in the case of Repro India Limited v. UOI [2009 (235) E.L.T. 614 (Bom.)]. Therefore, the conclusion in the impugned order that appellant is not eligible for exemption since the goods have not been exported under bond or LUT, cannot be sustained. It was also s....