The main legal point established in the judgment is that the entitlement to a refund claim is subject to the conditions and restrictions specified in the relevant notifications.

JUDGMENT

Gopal Krishan Vyas, J. - The instant central excise appeal has been filed by the appellant/assessee under Section 35 G of the Central Excise Act, 1994 read with Section 83 of the Finance Act, 1994, so as challenge the order No.ST/A54337/2017-CU (DB) dated 26.04.2017 in STA No.152/2011 (DB) passed by Customs, Excise & Service Tax Appellate Tribunal, New Delhi (CESTAT).

2. Briefly stated, the facts of the case are that the Assistant Commissioner vide its order dated 07.10.2009 denied the refund claim filed by the appellant, and being aggrieved by the said order, the appellant preferred an appeal before the Commissioner Customs & Central Excise (Appeals), Jaipur-II, Jaipur. The learned Commissioner (Appeals) after going through the submissions made by the appellant rejected the said appeal vide order dated 27.10.2010. Being aggrieved and dissatisfied with the order dated 27.10.2010, the appellant further preferred an appeal before the learned CESTAT, New Delhi and the learned CESTAT, New Delhi by final order dated 26.04.2017 rejected the appeal filed by the appellant, which is under challenge in this appeal.

3. The appellant is claiming exemption for refund under the Notification dated 06.10.2007 but the CESTAT, New Delhi held that the appellant is not entitled for exemption in the light of its own judgment in the case of "Jodhana Arts Crafts -- 2017 (47) STR 351." Therefore, the learned counsel for the appellant argued that the impugned orders passed by the authorities below are incorrect and unsustainable because the appellant has not availed drawback on service tax paid on the services for which refund is filed under Notification No.41/2007-ST. The crux of argument of learned counsel for the appellant is that as per Notification No.41/2007-ST dated 06.10.2007 he is entitled for refund but it has wrongly been denied by the subordinate authorities, therefore, the orders impugned deserves to be quashed and substantial question of law arises for consideration as to whether the learned CESTAT is justified in arriving at the conclusion that the service on which the appellant claimed refund is input service and the appellant claimed drawback under the drawback Rules.

4. After hearing the learned counsel for the appellant, we have perused the order passed by the learned CESTAT. Admittedly, the appellant is claiming refund under the Notification No.41/2007-ST dated 06.10.2007, in which there is Condition No.1 (e), which provides that refund would not be admissible, if the goods have been exported under the chain of drawback. The said restriction was removed on 07.12.2008 vide Notification No.33/2008-ST dated 07.12.2008. Admittedly the refund claimed by the appellant pertains to the period from July, 2008 to September 2008, which is prior to removal of restriction, therefore, learned CESTAT rejected the appeal.

5. In our opinion as per factual aspect of the matter, the appellant is not entitled for refund claim under the Notification No.41/2017-ST dated 06.10.2007 because restriction was removed on 07.12.2008 vide Notification No.33/2008-ST and the refund claim relates to the period from July, 2008 to September 2008, which is prior to the removal of restriction.

6. In view of above, we are of the opinion that it is not a case in which any substantial question of law emerges for consideration. Consequently, the instant appeal is hereby dismissed.