2017 (1) TMI 83

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....e appellant is engaged in the manufacture of Wet HIDE Liner falling under Chapter 39 of the CETA 1985. The appellant filed refund of accumulated cenvat credit of Rs. 4,69,399/- (Rupees Four Lakhs Sixty Nine Thousand Three Hundred and Ninety Nine only) for the quarter ending March 2010 under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006 CE (NT) on 07.06.2010. The sanctioning authority allowed the refund of Rs. 4,58,662/- (Rupees Four Lakhs Fifty Eight Thousand Six Hundred and Sixty Two only) under Rule 5. Aggrieved by the said order, Department filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 30.06.2014 allowed the appeal and set aside the Order-in-Original. Aggriev....

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....ny reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: 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 ....

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.... (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds. 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule 3 of the said rules against goods exported during the quarter or month to which the claim relates (hereinafter referred to as the given period ). 5. The refund of unutilised input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates i.e.....

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....service tax is allowed by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. 2.1. 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 required under the Notification 5/2006. He also submitted that the department has not brought any evidence on records to show that the final product is not exported in accordance with the provisions of law. The appellants have also produced the proof of export and the input and input services on which credit has been availed and the same has been used in the manufacture ....

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....ellate authority is sufficient to affect the recovery from the appellant. 4. I have heard the learned counsel for the parties and perused the records. The issue involved in the present case is whether the order of refund sanctioned by the JAC is in accordance with Rule 5 of the Cenvat Credit Rules 2004 read with Notification No. 5/2006 dated 14.03.2006. Further I find that the Assistant Commissioner has sanctioned the refund claims after satisfying the conditions as contained in the Notification 5/2006 dated 14.03.2006 and there is no infirmity in the orders granting refund where the Commissioner (Appeals) has wrongly observed that the original authority has failed to bring on record in the impugned order whether input or input services ar....