2007 (1) TMI 605

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....ls, in terms of Rule 5 of the Cenvat credit Rules, 2002 on the ground that they were not in a position to utilize the accumulated credit as the quantum of their clearance for home consumption was low as compared to clearance to EOU without payment of duty. The adjudicating authority has rejected the refund claims while relying upon the condition No.5 of Notification No.11/2002-CE(NT) dated 01.03.2002 observing that Rule 5 has not been fulfilled. Further, it is observed that the appellants have effected export clearances against UT-I/Bond without payment of duty instead of payment of duty under Rule 18 of the Central Excise Rules, 2002, which is resulted into accumulation of Cenvat credit. Lastly, it is observed that the appellants have been....

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....#39;s are not applicable.'' 5. The ld. Counsel for the appellants submits with regard to para 5 observations of the learned Commissioner while filing the refund application, various statements have been enclosed which shows the facts and figures- the receipt of goods, accumulated credit on that and the export of goods. These facts sufficiently shows the accumulation of credit which is not in their capacity to utilize the same. Whereas, the Commissioner (Appeals) has failed to appreciate the same. Further, it is putforth that where the situation arises of impossibility of utilization of accumulated credit, there is no option than to sanction the refund claim in cash. The support is drawn from the proposition laid down in the judgm....