TaxTMI 
TaxTMI 
2024 (1) TMI 1118
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....time and there was no liability of service tax from the services. (iii) The appellant exported the goods without bond or letter of undertaking and therefore not eligible for refund. 1.2 The relevant facts of the case are that the appellant first time on 20.03.20 applied for service tax registration on being realized that the appellant was liable to pay service tax under reverse charge mechanism on software services. On 30.08.2013 the appellant preferred the refund application for unutilized amount of cenvat credit on GTA Services, Banking and Financial Services and clearing and forwarding services used in the exported goods during the period 2009-2010 to 2011-2012 upto (31.07.2013). While filing the refund claim , the appellant claimed refund of unutilized cenvat credit proportionately to export turnover. The Assistant Commissioner vide order dated 27.11.2013 rejected the refund claim of unutilized cenvat credit of input services. 1.3 On 22.12.2014 the appellant again filed the refund claim by curing defects as pointed out by the learned Assistant Commissioner. The appellant placed reliance upon various decisions to show that the appellant was eligible for refund cla....
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....alf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that in the present case the adjudicating authority though given some observation but held that the refund claim is not admissible. However, the refund claim was returned back to the appellant, this approach of the Assistant Commissioner is clear in violation of principle of natural justice in as much as neither any show cause notice was issued nor an adjudication process was carried out. 4.1 Moreover, the Learned Commissioner (Appeals) though passed an order on merit. However, it is observed that on all the points on which the refund claim was denied has been addressed by various courts and Tribunals in various judgments cited by the appellant. From the impugned order passed by the learned Commissioner (Appeals), it is found that learned commissioner appeal has observed that the appellant have taken Cenvat Credit without having registration. In this regard, we find that availment of Cenvat Credit and / or for refund under Rule 5 of Cenvat Credit Rules registration is not mandatory as per the following judgment....
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.... the purpose of discharge of duty, would be more or less the same or an identical situation to indicate that as STP appellant is eligible for refund of unutilised credit. Similar decision has been taken in the following decisions: a. mPortal Solutions India (P) Ltd Vs CST - MANU/KA/2362/2011 b. Mafatial Ind Ltd Vs CST - 2020 (43) GSTL 562 (T) c. Imagination Technologies India P. Ltd. Vs. Commr. of C. Ex., MANU/CM/0236/2011" In view of the above judgment it is settled that Cenvat Credit and /or refund thereof cannot be denied merely because the claimant has not taken the registration of Service Tax/ Central Excise. The other issue dealt with by the Commissioner (Appeals) is that the refund of input duty /input service tax when appellant's goods which was exported is exempted from Central Excise Duty and Service Tax and the export of the goods was made without bond /LUT. We find that this issue is also settled in various Judgments as follows :- Repro India Ltd. Vs. Union of India - 2009 (235) ELT 614 (Bom.) 7. We may also consider the provisions of Rule 6 of the Cenvat Credit Rules, 2004. The relevant portion of Rule 6(6)(v)....
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....t. In view of the foregoing in this case the provisions of sub-rule 57C(1) are satisfied as stipulated under Rule 57C(2) as well as Rule 57CC(6)1 and there was no need to comply with the provisions of rule 57CC1). Therefore, it is clear that an amount of 8% of the price of the goods exported is not required to be paid irrespective of whether the exported goods are exempted or otherwise." It would thus appear that the direction of the respondent No. 2 to the petitioners to pay 10% even though printed books were exported is not legally sustainable. It is only in the event the petitioners does not export the printed goods and do not maintain the account as contemplated by rule 6(2) the petitioner would be required to pay 10% on the sale price of the printed books not so exported. Even though Rule 6(1) of the Cenvat Credit Rules, 2004 provides that no Cenvat credit will be available in respect of the inputs used in the manufacture of exempted products, Rule 6(6)(v) of the Cenvat Credit Rules creates an exemption inter alia in respect of the excisable goods removed without payment of duty for export under bond in terms of Central Excise Rules, 2002. Considerin....
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.... 6(6)(v). 9. We may also consider the various clauses of Rule 6(6) which would indicate that they relate to goods which are wholly exempt from duty. Rule 6(6)(i) relates to supply to SEZ. These are wholly exempted from duty vide Notification dated 19th October, 2001 and notification dated 22nd July, 2003. Rule 6(6)(ii) relates to supply of goods to Export Oriented Units. These are wholly exempt by Notification dated 31st March, 2003. Rule 6(6)(iii) relates to goods supplied to a unit located in Electronic Hardware Technology Park or Software Technology Park. Such supplies are exempt from duty by Notification dated 31st March, 2003. Rule 6(6)(iv) relates to supplies to United Nations or an international organisation for their official use. These are exempt by Notification No. 108/95. Rule 6(6)(v) relates to export under bond. Rule 6(6)(vi) relates to gold or silver arising during refining of copper. These are exempt from payment of duty by Notification No. 5/2006-C.E., dated 1st March, 2006. It would thus be clear that all the clauses of Rule 6(6) are enacted only to deal with the situation when the final products are exempt from payment of duty. If a final product is not e....
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.... under the items of the provisions of the Central Excise Rules, 2002; or (vi) gold or silver falling within Chapter 71 of the said First Schedule, arising in the course of manufacture of copper or zinc by smelting." A perusal of the aforesaid Rules would clearly show that sub-rule (i) to (vi) are identical and the difference in Rule 6(6) of the Cenvat Credit Rules, 2004 and Rule 6(5) of the Cenvat Credit Rules, 2002 is not relevant for the purpose of the present case. Rule 6(1), 6(2), 6(3) and 6(4) of the Cenvat Credit Rules under Cenvat Credit Rules, 2002 as well as under the Cenvat Credit Rules, 2004 remains the same. As noted earlier the object and purpose of Rule 6(6) of Cenvat Credit Rules, 2004 is to promote the policy of the Government that the benefit of duty paid on input is available as credit in respect of certain exempted goods as well as the exempted goods exported under bond. The minor change in the wordings of Rule 6(6) of the Cenvat Credit Rules, 2004 by using the term "excisable goods" instead of exempted goods is that the term 'exempted goods' may not cover the dutiable goods which are exported under bond. Therefore, in order to widen and cover b....
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....E.L.T. 352 to come to the conclusion that benefit of exemption or concession should not be denied whenever intended use of material is established by other evidences and just because of procedural violation, that by itself will not disentitle them from taking the benefit. In this case it is not the case of the department that goods have not been exported or appellant did not have the relevant documents for availing credit or inputs have not been used for the manufacture of exported goods. We also take note of the fact that in the case of Tuffropes Private Limited v. CCE, Vapi - 2009 (233) E.L.T. 544 (Tri.-Ahmd.), this Tribunal had taken a view that exempted goods can also be cleared under bond. Further, in the case of Commissioner v. Suncity Alloys Pvt. Limited - 2007 (218) E.L.T. 174 (Raj.) = 2009 (13) S.T.R. 86 (Raj.), the Hon'ble High Court of Rajasthan held that exempted goods cleared for export on payment of duty, manufacturer can claim rebate. All these decisions would show that procedural requirements should not come in the way of legitimate claim for refund. The Commissioner of Central Excise Drish Shoes Limited - 2010 (254) E.L.T. 417 (HP) 8. It is not in....
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....of inputs or capital goods received in the factory after 1st day of March, 2002. They remained in force till the Rules of 2004 came into force. Rules of 2004 are applicable in respect of inputs received by the manufacturer after 10th day of September, 2004. Since finished leather was exported between August, 2004 and March, 2005 and it was not clear as to when the inputs were received, so reference has been made to both the sets of rules. As already noticed, the provisions of both the rules are similar, except that under the Rules of 2002, exception contained in sub-rule (5) of Rule 6 was applicable only to the exempted goods, while under the Rules of 2002, exception applies to all excisable goods, irrespective of the fact whether they are exempted or subject to levy of duty. 13. Assistant Commissioner file, rejecting the claim of the respondent, held that since the finished leather exported by the respondent was exempt from duty, no bond or Letter of Undertaking was required to be furnished and the furnishing of bond by the respondent was only a device to claim CENVAT credit under the CENVAT Credit Rules. He took the view that Rule 6(1) clearly stated that CENVAT credit w....
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....tion and interpreting the provisions of Rule 6(5) of CENVAT Credit Rules, 2002 and Rule 6(6) of CENVAT Credit Rules, 2004, has held that expression " excisable goods" is wider than the expression " exempted goods", as it includes both dutiable as also exempted goods. 20. In view of the above discussion, we hold that an assessee, manufacturing goods chargeable to nil duty, is eligible to avail CENVAT credit paid on the inputs under the exception clause to Rule 6(1), as contained in Rule 6(5) of CENVAT Credit Rules, 2002 and Rule 6(6) of CENVAT Credit Rules, 2004, used in the manufacture of such goods, if the goods are exported. Question No. 1 is answered accordingly. 21. As regards question No. 2, it is clear from a bare reading of Rule 5 of CENVAT Credit Rules, 2004 that a manufacturer, who exports the final products which are exempt from duty, can claim refund of CENVAT. So, this question is also answered against the appellant. 22. view of the aforesaid answers to the questions of law, appeal is dismissed. Commissioner of Central Excise Vs. Jolly Board Ltd. "8. It would be clear that in the decision of the Himachal Pradesh High Court, t....