2016 (5) TMI 1213

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....s seeking refund of the amount as mentioned below in the table under Rule 5 of Cenvat Credit Rules 2004 for the period mentioned in the table. Sl. No. Appeal No. Period involved Refund Claimed (Rs.) Refund Sanctioned (Rs.) 1 E/2277/2010 January to March 2009 2,33,395/- 2,25,399/- 2 E/2278/2010 April to June 2009 2,35,244/- 2,35,073/- 3 E/1305/2011 July to September 2009 3,51,270/- 3,39,990/- 4 E/1306/2011 October to December 2009 3,72,578/- 3,72,508/- The application was considered by the adjudicating authority and the same was forwarded to the jurisdictional Range Officer for verification and on scrutiny of the application with the documentary evidence with the Range Office appellants were granted refund as shown in the table as per the provisions contained in Rule 5 of the Cenvat Credit Rules 2004 read with Notification 5/2006-CE (NT) dated 14.03.2006. In all the cases the sanctioned refund was paid to the appellant. Thereafter the appellant received a copy of the appeal filed by the department pursuant to the directions of the Commissioner of Central Excise under Section 35E(2) of the Central Excise Act 1944 on the ground that the order of the adjudicat....

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....sp;              Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax.                 Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilized for payment of service tax on any output service. Explanation: For the purposes of this rule, the words "output service which is exported" means the output service exported in accordance with the Export of Services Rules, 2005.]" The conditions as prescribed in Notification 5/2006 are reproduced herein below: "1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Services Rules, 2005, as the case may....

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....s rule. 2. "Total turnover" means the sum total of the value of, - (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold, during the given period. 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). 7. The refund of excise duty or service tax is allowed by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be." 3.1. Learned counsel for the appellant submitted that the appellant has furnished all the relevant documents to the refund sanctioning authority and the sanctioning authority before granting the refund has considered all the documents as requi....

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....refund and I find that the Assistant Commissioner has sanctioned the refund claims after satisfying himself with regard to the conditions as contained in the Notification 5/2006 dated 14.03.2006 and there is no infirmity in the orders granting refund whereas the Commissioner (Appeals) has wrongly observed that the original authority has failed to bring on record in the impugned order whether the input/input services are used in relation to the manufacture of exported goods. Therefore in my considered opinion the appellants have furnished all the relevant documents to the satisfaction of the sanctioning authority and the sanctioning authority in all the refund orders has clearly held that the appellants have fulfilled all the conditions stipulated in the Notification No. 5/2006 dated 14.03.2006 and there are no legally sustainable ground on which the validly sanctioned refund orders should be set aside and therefore as per my considered view the findings returned by the Commissioner (Appeals) on merit needs to be set aside and I set aside the same. Secondly I find that the impugned order is beyond the grounds on which the permission was granted to prefer an appeal in the review orde....