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Max Heal Pharmaceuticals (I) V/S Commissioner of Customs & Central Excise

    Appeal No. E/148/11 (Arising out of Order-in-Appeal No.AKP/272/NSK/2010 dt. 30.09.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik Customs & Central Excise)

    Decided On, 28 July 2017

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, MEMBER

    For Respondents: S.V. Nair, Asstt. Commr. (A.R)

Judgment Text

1. The fact of the case is that the appellants are engaged in the manufacture of excisable goods namely P & P Medicaments falling under Chapter 30 of the CETA, 1985. They have cleared the final product on payment of duty under claim for rebate. They have filed refund claim of Rs. 37,77,192/- in respect of the Cenvat Credit lying unutilized in their cenvat account for the period October 2008 to December 2008 in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 4/2006-CE(NT) and 5/2006-CE(NT) dt. 14.3.2006. The adjudicating authority has rejected the refund claim on the ground that refund under Rule 5 of accumulated cenvat credit is admissible only from the final product which are exported under bond without payment of duty. However in the present case the appellant exported on payment of duty under claim for rebate. The appellant being aggrieved by the order-in-original filed appeal before the Commissioner (Appeals) who upholding the order-in-original rejected the appeal filed by them, therefore the appellant is before me.

2. None appeared on behalf of the appellant. From the grounds of appeal the appellant submitted that the accumulation of credit has occurred due to the reason that the duty on input was 16.48% to 8.24% and the final product was attracting duty at the rate of 8.24% to 4.12%. Therefore the accumulation of Cenvat Credit is on account of very same inputs, which has gone into the manufacture of export goods, therefore the said accumulated credit is refundable in terms of Rule 5 of Cenvat Credit Rules. As per Rule 5 the accumulated Cenvat Credit on account of export is allowed to be unutilized for payment of duty on goods cleared for home consumption. Therefore after payment of excise duty from the cenvat account still there was an accumulation of cenvat credit the same is refundable against the export of goods. The appellant placed reliance on the judgment of this Tribunal in the case of Navbharat Ind. Vs. CCE Thane-I : 2006 (199) ELT 148-Tri.-Mumbai).

3. Shri S.V. Nair, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the foremost condition allowing refund of accumulated cenvat credit under Rule 5 is that the final product should be exported under bond. It is also provided in the Rule and in the notification issued there under that the refund shall not be allowed in a case where the assessee claim the rebate of duty or drawback.

4. I have carefully considered the submissions made by the Ld. AR and also perused the records. I find that the facts are not much in dispute that the refund claim under Rule 5 was made by the appellant in respect of accumulated credit against the export of goods which were cleared on payment of duty under claim of rebate in terms of Rule 5 and notification issued there under. There is a condition that the refund under Rule 5 is permissible only when the final product is cleared under bond that means if the final product is cleared for export on payment of duty no refund of accumulated credit is admissible in terms of Rule 5 and notification issued thereunder. There is a specific condition under notification issued and Rule 5 that refund

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of accumulated credit shall not be allowed in case the goods are cleared under claim of rebate or drawback. In these circumstances, the rejection of refund claim by the original authority and upholding the same by Commissioner (Appeals) is absolute in the order, therefore the impugned order does not require any interference hence the same is upheld. The appeal is