2008 (3) TMI 158

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....s Stone Exports before this Tribunal being Appeal No. E/1294/07 has been allowed by Single Member Bench on 21.06.2007 holding that the findings of the Commissioner (Appeals) are illegal, while the order of the original authority was in accordance with rules. The impugned order being common, in the ordinary course, I should have simply noticed the said order and allowed these two appeals as well.  In fairness to the parties, however, I propose to record a brief order in view of the contention advanced on behalf of the Revenue that the Single Member Bench passed the said order ignoring the provisions of rule 5 of the Cenvat Credit Rules, 2004 and without taking into consideration the provisions of rule 6(1) of the said Rules.  3.....

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....utput service which is exported, the cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of (i) duty of excise on any final products cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified by the Central Government by notification.  In terms of the first proviso, no refund is to be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Ex....

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....ula laid down in the Notification, the liability of the appellant works out to Rs. 4.50 being 30% of the then prevailing rate of customs duty and, therefore, it cannot be said that the slates/sand stones/tiles manufactured by the appellant were exempted goods.  7. It is relevant to mention here that though, ordinarily, all goods included in the First and the Second Schedule to the Central Excise Tariff Act, 1985 are excisable goods by virtue of the definition of "return" under Section 2(d) of the Central Excise Act chargeable to duty at the rates mentioned in the relevant column of the Schedule unless exemption is granted from the duty.  However, for the purpose of Cenvat Credit Rules, 2002, exempted goods have been given in so....