Rakesh Kumar, Technical Member - The appellant are a 100% EOU engaged in manufacture of cotton yarn and knitted fabrics of cotton chargeable to Central Excise Duty. They have availed Cenvat credit of Central Excise Duty paid on some inputs and of Service Tax paid on input services, which they use for payment of duty in respect of their DTA clearances. Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE (NT) dated 14/3/06 issued under this Rule provides that where any inputs or input services are used in manufacture of final product, which is cleared for export under bond or under letter of undertaking or is used in the intermediate product cleared for export or used in providing output service which is exported, the Cenvat credit in respect of such inputs or input services so used shall be allowed to be utilised by the manufacturer or output service provider towards payment of excise duty on any final product cleared for home consumption or export on payment of duty or for payment of service tax on output service and where for any reason such use of Cenvat credit is not possible, the manufacturer or output service provider shall be allowed refund of such amount subject to such safeguards, conditions and limitations as prescribed in the notification. This cash refund of such accumulated Cenvat credit is subject to the condition that the manufacturer or output service provider has not claimed drawback under the Customs and Central Excise Duty Drawback Rules, 1995 in respect of the export of finished product or has claimed rebate of duty under Central Excise Rules or has claim of rebate of service tax under export of Service Rules, 2005. In this case the appellant filed refund claim of Rs. 16,37,117/- under Rule 5 of the Cenvat Credit Rules, 2004 for cash refund of the accumulated credit and the Jurisdictional Assistant Commissioner vide order dated 14/8/08 sanctioned the refund claim of an amount of Rs. 15,35,068/- and rejected the claim for balance amount of Rs. 1,02,049/-. However, the Assistant Commissioner's order dated 14/8/08 was reviewed by the Commissioner and the review appeal was filed before Commissioner (Appeals) on the grounds that -

(a) out of the accumulated Cenvat credit whose refund is sought, an amount of Rs. 92,576/- is Cenvat credit in respect of GTA service related to outward transportation of the export goods to which the appellant are not entitled and, hence, there was no question of its refund under Rule 5 and

(b) refund amount of Rs. 11,08,095/- is in respect of Cenvat credit of service tax paid on erection, installation, commissioning service for erection, installation, commissioning of the power plant which had started functioning on 31/3/08, while the goods in respect of which the refund claim under Rule 5 has been filed, had been exported during the period prior to 31/3/08 and, thus, the input services, in question, in respect of which the Cenvat credit had been taken had not been used for manufacture of the goods exported.

1.1 The Commissioner (Appeals) vide order-in-appeal dated 24/3/10 while rejecting the Department's appeal with regard to refund of Cenvat credit of service tax paid on GTA service for outward freight and upholding the Assistant Commissioner's order in this regard, allowed the department's appeal in respect of the refund of credit of service tax paid on erection, installation, commissioning service used for erection, installation, commissioning of captive power plant on the ground that while the power plant had started functioning on 31/3/08, the goods in respect of which this refund claim had been filed, had been exported prior to 31/3/08. The Commissioner (Appeals), thus, set aside the Assistant Commissioner's order in respect of refund amount of Rs. 11,08,095/-. Against this order of the Commissioner (Appeals), this appeal along with stay application have been filed.

2. Heard both the sides in respect of stay application.

2.1 Ms. Sukriti Das, Advocate,