Per P. Karthikeyan : M/s. Manoj Handlooms, Chennai cleared cotton fabrics without payment of duty against CT-3 certificates to an EOU. The clearances had taken place during the year 2003. The appellants claimed refund of the CENVAT credit accumulated on account of clearances to the EOU on 11.8.05. The impugned order sustained denial of claim for refund of credit accumulated in the CENVAT account of the appellants in terms of Rule 5 of the CENVAT Credit Rules, 2004. In the impugned order, the Commissioner found that refund of credit accumulated on account of exports was governed by the Notification issued by the government under Rule 5 of CCR. Notification No. 11/2002-CE (NT) dt. 1.3.02 issued under Rule 5 of CCR had prescribed, inter alia, the following conditions in clauses (4) (6) of the Appendix to the Notification:-

''4. The manufacturer submits an application in Form A annexed to this notification to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction the factory from which the goods are exported is situated, along with the Bill of Lading or Shipping Bill or Export Application duly certified by any officer of customs to the effect that goods have in fact been exported.

6. The application in Form A along with the proof of due exportation and the relevant extracts of the records maintained under the said rules or the deemed credit register maintained in respect of textile fabrics, as the case may be, in original are lodged with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act, 1944 (1 of 1944)".

The Commissioner found that the appellants had not furnished proof of export of the consignments involved as prescribed in clauses (4) (6) of the Appendix. The appellants had also failed to submit evidence to establish that the claim satisfied various other conditions laid down in Appendix to Notification No. 11/02-CE (NT).

2. The appellants have denied that they are required to furnish proof of export to earn the refund claimed. They had furnished documents evidencing clearances to the EOU in the form of related ARE-3s. During the hearing, ld. consultant representing the appellants submitted that the sole ground on which the impugned refund claims were proposed to be disallowed was that the appellants had not submitted proof to establish that the credit amount had accumulated on account of inputs used in the manufacture of finished goods exported under bond or under letter of undertaking. The impugned order was passed on grounds extraneous to the SCN. The same, therefore, deserved to be set aside. The ld. consultant also relied on the following case law:-

(1) CCE Surat Vs. Shilpa Copper Wire Industries 2008 (86) RLT 16 (CESTAT-Ahmd.)=2008 (226) ELT 228 (Tri.-Ahmd.)

In this decision, the Tribunal had held that as the final products had been cleared to another 100% EOU as deemed export, the same had to be treated as "export" and refund of unutilized credit had to be made to assessee.

(2) Gulshan Prints P. Ltd. Vs. CCE Surat 2004 (170) ELT 345 (Tri.-Mumbai)

In this decision, the Tribunal held that the appellants therein could not be denied refund of the deemed credit in respect of grey fabrics utilized by them in the export product. Notification No. 29/96 had laid down that where utilization of credit for payment of duty on final goods could not be made for any reason, the manufacturers were eligible for refund.

(3) CCE Chandigarh Vs. Himachal Wire Industries (P) Ltd. 2005 (185) ELT 303 (Tri.-Del.)

In this case, the Tribunal had observed that CBEC's Circular No. 220/54/96-CX., dated 4.6.96 [reported in 1996 (15) RLT M1] had advised payment of refund in cash, even in the case of unutilization of MODVAT credit relating to exports. The Commissioner had filed appeal contrary to the Circular of the Board.

3. The ld.