TaxTMI 
TaxTMI 
2023 (5) TMI 1077
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....as per condition 5 of notification No.11/2002C.E (NT) dated 02.03.2002 as amended by notification No.49/2003 C.E (NT) dated 17.05.2003, the refund is allowed only in those circumstances where a manufacturer is not in a position to utilize the credit of the duty on inputs allowed under Rule 3 of the said rules against goods exported during the period to which the claim relates. The condition No. 5 is a restrictive condition which has to be fulfilled to the satisfaction of the officer sanctioning the claim and it is specifically mentioned that the refund can be sanctioned only if claimant is unable to utilize the credit at all and not restricted to home clearances. If the assesses is in a position to utilize the credit for clearance of goods ....
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....ecords. The refundable amount should be an actual amount and not average amount. It was also a fact on records that right from the initial stage the appellant had claimed their refund claim on average basis only and the Hon'ble CESTAT had neither given any specific direction to accept these refund claimed filed on average basis as such nor accepted the same as one filed on actual basis. The Hon'ble CESTAT Mumbai in the case of Universal Enterprises V/S CCE Mumbai [2011(271) ELT 261(Tri. Mumbai)] has held that mere statements (of partners & managers) without correlation amount to absence of any documentary evidence. The ratio of order is applicable in the instant case as claim is unsubstantiated. 14. The contention of the appellan....
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....ence of documentary evidence 16. In view of foregoing and findings the arguments and relied upon case laws by the appellant do not come to their help. I, therefore, hold that the appeal filed by the appellant is devoid of merits and not fit for consideration. Accordingly I pass order. I uphold the Order-in-Original and reject the appeal." 2. Tribunal while remanding the matter to original authority has vide Order No A/476/WZB/06/C-II/EB dated 24.03.2006 observed as follows: "2. After hearing both sides, we find that as per the facts on record, the appellant is engaged in the processing of textile fabrics. mainly cotton fabrics and exporting the same under bond. As a result of export of the final products. Modvat credit availed in ....
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....ons as may be specified by the Central Government by notification. 4. The Central Government vide its Notification No. 11/02-CE (NT) dated 1.3.2003 in exercise of the powers conferred by said Rule 5 of Cenvat Credit Rules. 2002 has laid down safeguards. conditions and limitations, set out in the Appendix to the said Notification. As per serial No 2 of the said Appendix, claims for refund in respect of export clearance of textile and textile articles can be made in each calendar month. This shows that if an assessee is not able to utilize the credit within one month, he could claim refund of the credit of duty paid on the inputs used in the manufacture of final product which stands ultimately exported under bond. As such the objection of ....
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....d by the provisions of Rule 5. We find no justification for denying the same to the appellant. 6. We agree with the Ld Advocate appearing for the appellant that the provisions of Rule 5 relating to refund of Modvat credit accumulated in the records on account of their non utilization for the exported goods is a beneficiary piece of legislation, the refund arising on account of the same cannot be denied being a substantive right of the citizen. The wording of Rule 5 read with Rule 3 are very clear providing for refund of accumulated Modvat credit if the same cannot be adjusted for any reason. As such the only condition in the said Rule is non utilization of the credit and no jurisdiction vests in the Central Excise officer to find out the....