COMMISSIONER OF C. EX., AHMEDABAD Vs. SURYA INTERNATIONAL

JUDGEMENT

(1.) BOTH the appeals are being disposed off by a common order as an identical issue is involved. Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeals.

(2.) THE respondents are exporting final products under bond as well as under the claim for rebate. Wherever, the goods were exported under rebate claim, the same were cleared on payment of duty which was paid by utilizing the Modvat credit. In respect of the exports under bond, the respondents filed refund claim of Modvat credit in terms of Notification No. 5/2006 -C.E. (N.T.), which allows the refund of unutilized Cenvat credit lying as balance in respect of inputs and input services used in the manufacture of final products, which is cleared for export under bond. The said refund claims are admissible only where a manufacturer or provider of out put service is not in a position to utilize the input credit or input service credit allowed under Rule 3 of the Modvat Credit Rules against the goods exported during the quarter or month to which the claim relates.

(3.) THE original adjudicating authority rejected the refund claims on the ground that the assessee was in a position to utilize the credit in respect of the goods cleared for export under rebate. However, on an appeal against the above order, Commissioner (Appeals) had held in favour of the assessee, hence the present appeal. For better appreciation relevant para of Commissioner (Appeals) order in the case of M/s. Surya International is reproduced : -