M.M. Kumar, J. - (1.) THE Commissioner of Central Excise, Rohtak has filed the instant appeal under Section 35 -G of the Central Excise Act, 1944 (for brevity, the Act) challenging the order dated 9 -2 -2007 [2007 (213) E.L.T. 117 (Tribunal)] (Annexure A3) passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi (for brevity, the Tribunal). It has been claimed that following substantial question of law arises for determination of this Court : - Whether, Refund of Cenvat Credit paid on inputs (AED T&T) used in the manufacture of final products exported under rebate claim under Rule 18 of Central Excise Rules, 2002 on payment of duly, is allowed under Rule 5 of Cenvat Credit Rules, 2002?
(2.) BRIEF facts of the case may first be noticed. The assessee -respondent (here matter -'Assessee') is engaged in the manufacture of textile goods like made -ups and home furnishing articles. The assessee is duly registered with Central Excise Division, Panipat and had filed refund claim amounting to Rs. 9776/ - under Rule of Cenvat Credit Rules, 2002 (for brevity, CC Rules, 2002) in respect of unutilised Cenvat Credit of Additional Excise Duty (Textiles and Textile Articles) paid on the inputs. The assessee had exported finished goods on payment of Basic Excise Duty under rebate claim covered by Rule 18 of Central Excise Rules, 2002 (for brevity, Excise Rules, 2002). As no Additional Excise Duty (T&T) was chargeable on the finished goods therefore, the Cenvat Credit of Additional Excise Duty (T&T) paid by the assessee on inputs remained unutilized. The rebate claim made by the assessee under the Excise Rules, 2002 was granted to them. Thereafter, the assessee filed refund claim of Additional Excise Duty (T&T) paid on inputs under Rule 5 of the CC Rules, 2002. The Assistant Commissioner, Central Excise, rejected the claim by passing the order -in -original dated 2 -3 -2006, (Annexure A -1), mainly on two grounds; (a) that the refund claim made under Rule 5 of CC Rules, 2002 was not maintainable as the export was made on payment of duty whereas Rule 5 of the CC Rules envisages for refund of Cenvat Credit in case the export was made under Bond and (b) that the respondent did not provide the details of inputs consumed in the export goods nor it followed the conditions of notification dated 1 -3 -2002 issued under Rule 5 of CC Rules, 2002.
(3.) THE assessee challenged the order -in -original before the Commissioner of Appeals, who allowed the appeal by setting aside the order dated 2 -3 -2006. Accordingly, the refund claim of the assessee was allowed, the basic premise for allowing the refund claim is that the use of the inputs was adequately proved. The finding of the adjudicating authority to that extent being erroneous was set aside. It was further held that the adjudicating authority has travelled beyond the scope of the show cause notice as there was no allegation that the refund under Rule 5 of the CC Rules, 2002 was not admissible on the ground that the assessee exported the goods by paying the Excise duty as against the requirement of the rule of exporting goods under a Bond.;