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2019 (8) TMI 758 - AT - Central Excise100% EOU - Cash Refund of unutilized CENVAT credit - deemed exports - Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.27/2012-CE dated 18.6.2012 - Applicability of provisions of Section 142 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- In the present case, appellant is a 100% EOU who has admittedly supplied the goods to another EOU and filed refund claims under Rule 5 read with Notification No.27/2012 dated 18.6.2012. Further, the goods were supplied by the appellant to another EOU after coming into force of the amendment in Rule 5. The insertion of Clause (1A) in Explanation 1 of Rule 5 of CENVAT Credit Rules effective from 1.3.2015 whereby export of goods means only those goods which are to be taken out of India to a place outside India which means that there has to be a physical export and for ‘deemed export’, cash refund is not permissible. Applicability of provisions of Section 142 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The findings of the original authority that the amount of refund claim would lapse under Section 142 of Central Goods and Service Tax Act, 2017 is not tenable in law, since there was no dispute about the fact that at the time of filing of refund claim, the appellant had debited the whole amount in their CENVAT account as required by the then Notification No.27/2012 dated 18.6.2012 and when the GST was introduced, there was no amount lying in the balance in the appellant’s record. Further, provision to subsection (3) of Section 142 of Central Goods and Service Tax Act, 2017 is not applicable in the present case - appellants are entitled to take the re-credit of the CENVAT for which they had filed the refund claims and the said amount will not lapse as per Section 142 of the Central Goods and Service Tax Act, 2017. The appellants are not entitled to cash refund but they are entitled to take re-credit of the same - Appeal disposed off.
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