TaxTMI 
TaxTMI 
2013 (9) TMI 1002
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....apur Commissionerate. 2. Brief facts of the case are that applicant have utilized accumulated Cenvat credit of Additional Excise Duties (T&TA) of Rs. 16,56,415/- and Rs. 21,78,280/- towards payment of basic excise duty on clearance of exported goods and sought rebate of duty paid. Upon filing the said rebate claims with the Deputy Commissioner, Taloja Division, the same was rejected holding that accumulated Cenvat credit of Additional Excise Duties (T&TA) cannot be utilized for payment of basic excise duty on any final product. 3. Being aggrieved by the said order-in-original, applicant filed appeal before Commissioner (Appeals) who rejected the appeal. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has....
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....accumulated credit of AED (T&TA) can be claimed as refund under Rule 5 of Cenvat Credit Rules clearly indicates that the Cenvat credit in respect of inputs used in final products cleared for exports shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final product cleared for home consumption or for exports on payment of duty or if this is not possible, allow refund of such amount. The said circular dated 22-3-2007 makes a reference to Rule 5, and Rule 5 clearly permits use of inputs credit for payment of basic excise duty on exports. Therefore, even from this point of view, the said circular permits payment of unutilized accumulated AED (T&TA) for payment of Basic Excise Duty on exports. (ii) ....
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....aid Circular/Provision of the said Cenvat Credit Rules. The finding of the Commissioner (Appeals) that, the said order/letter (5.5.10) was void ab initio is untenable in law and requires to be set aside. 4.4 The applicants further say and submit that the findings of the Commissioner (Appeals) that the various decisions cited by the applicants was not applicable to the facts obtained in the present case, are erroneous in law. The applicants reiterate that the issue is covered by the Hon'ble Bombay High Court decisions and several Tribunal decisions mentioned hereinunder. The said order is required to be set aside on this ground also. (i) Commissioner of Central Excise, Mumbai-II v. D.C. Polyesters Pvt. Lt....
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....ducts cleared for export shall be utilized towards payment of duty of excise on any final product, that letter dated 5-5-2010 issued by jurisdictional ACCE has allowed them to utilize the accumulated Cenvat credit for payment of Basic Excise duty. 9. Government notes that as per Rule 3 of Cenvat Credit Rules, 2004, a manufacturer can take Cenvat credit of duties paid. The Rule 3(4) provides for manner of utilization of Cenvat credit availed. The Rule 3(7)(b) of said rules stipulated that Cenvat credit of AED (T&TA) shall be utilized towards payment of duty of excise or as the case may be of service tax leviable under the said Additional Duties of Excise (Textiles & Textile Articles) Act, 1978 on any final products manufactured by the ....
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.... there is a restriction on utilization of such credit taken of AED (T&TA) which lays down that credit taken of AED (T&TA) can be utilized only for payment of AED (T&TA). C.B.E. & C. has further clarified that as per Rule 3 of Cenvat Credit Rules, 2004, Cenvat Credit of AED (T&TA) can be claimed as refund under Rule 5 of Cenvat Credit Rules, 2004. There is no ambiguity in the provisions of said circular. Applicant was entitled for refund under Rule 5 subject to compliance of condition/procedure laid down therein. But, there was no provision under the rules for payment of basic excise duty from such Cenvat credit of AED (T&TA). Applicant has given his own interpretation which suits him and it cannot be accepted being contrary to the provision....