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2016 (3) TMI 343 - AT - Central ExciseEligibility for refund of the unutilized CENVAT Credit - Credit lying in balance as they had cleared the goods under CT-3 to a unit situated in SEZ or otherwise under Rule 5 of the Cenvat Credit Rules,2004, read with Notification No. 5/2006-CE(NT) dated 14.03.2006 as amended - Held that:- Undisputed facts are the appellant is eligible to avail CENVAT credit of the inputs which are used for manufacturing of cables and wires, discharges appropriate duty on the final products and also clear the final product to a unit situated in SEZ. It is also undisputed that the appellant has, during the material period in these appeals, was unable to utilise the CENVAT Credit lying in balance as there were no home clearances and all the clearances were made to unit in SEZ without payment of duty but under bond. In our considered view, the first appellate authority as well as the adjudicating authority were in error in rejecting the refund claims and confirmation of demands initiated by show-cause notices for erroneous refund sanction for more than one reason as there is no dispute as to the fact that the finished goods were cleared to an unit situated in SEZ which would amount to export as per the provisions of SEZ Act, more specifically Section 2(m) of the SEZ Act which states that any supply of goods or provisions of services from DTA to SEZ unit or SEZ developer has been defined to be as an export; Section 51 of the SEZ Act provides that this Act shall have over riding effect any other law for the time being in force, which would mean that the provisions of SEZ Act needs to be referred to as to whether clearance of amount to export. If that be so on plain reading any clearances made by appellant to an SEZ unit during the material period in this appeal have to be considered as "export". - Decided in favour of assessee
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