2019 (9) TMI 1106

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....-148-18-19 dated 28.02.2019. The stay applications have been filed by the department praying that the operation of the impugned orders may be stayed and the refund sanctioned may consequently be withheld. 2. Heard both sides and perused the records. As far as the stay applications are concerned, we find that the power of stay of the Tribunal is confined to staying the recovery of pre-deposit in case the demand is confirmed but this power has also now been restricted as the amount of predeposit has been fixed by the statute. Consequently, all three stay applications are dismissed as not maintainable. 3. We have also considered the issue in hand and found that same can be disposed of immediately and we proceed to do so. 4. The responden....

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....uards, 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 Tariff Act shall be utilised for payment of service tax on any output service. Explanation: For the purposes of this rule, the words "output service ....

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....ty portion refers to average Central Excise duty incidence in the manufacture of such products. Whenever a person exports goods, he is entitled to this drawback of both customs portion and central excise portion. In respect of some commodities, there is only one rate in the schedule. Notification 110/2015-CUS dated 16.11.2015 clarified such single rates in point in Para 7 as follows: "(7) The figures shown in the said Schedule under the drawback rate and drawback cap appearing below the column heading Drawback when Cenvat facility has not been availed refer to the total drawback (Customs, Central Excise and Service Tax component put together) allowable and those appearing under the column heading Drawback when Cenvat facility has been av....