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2015 (10) TMI 2353 - CESTAT BANGALORERefund claim - CENVAT Credit - denial of Cenvat credit refund on the ground that supply of goods from one 100% EOU to another 100% EOU will not be considered as 'physical export' - whether, the time limit prescribed in Section 11B of the Act would be applicable for refund of accumulated Cenvat credit in terms of Rule 5 of the Rules: and, supply of goods between two EOUs, which is recognized as 'deemed export' under the FTP, would be considered as 'physical export'. for the purpose of getting the benefit of refund under Rule 5 of the said rules. Held that:- In exercise of the powers conferred by Rule 5 of the Rules, the Central Government vide Notification No. 5/2006-C.E.(N.T.) dated 14.3.2006 prescribed the conditions/limitations for claiming refund of service tax by a manufacturer. In Appendix No. 6 of the said notification, it has been provided that refund application in Form A is to be filed with the jurisdictional Central Excise authorities before the expiry of period specified in Section 11B of the Central Excise Act, 1994 - The term 'relevant date' has neither been defined in Rule 5 of the Rules nor in the notification issued there under. Further, the said term defined in Section 11B of the Act is not compatible with the situation envisaged in the aforesaid rule. Therefore, there was ambiguity in interpreting the importance/significance of the term 'relevant date' in context with the said rule. The Hon'ble High Court of Madras in the case of GTN Engineering (2011 (8) TMI 960 - MADRAS HIGH COURT), upon analysis of the provisions of Rule 5 of the Rules, Notification dated 14.03.2006 and Section 11B of the Act, have held that the date on which the export of the goods was made and for such goods, refund of Cenvat credit is claimed, should be construed as the relevant date for the purpose of Rule 5 of the Cenvat Credit Rules. Finding recorded in the impugned order that physical export is not to be equated with deemed export and thus, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of Rules, in my considered opinion, is not legal and proper, in view of the judgment of Hon'ble Gujarat High Court in the case of Shilpa Copper (2010 (2) TMI 711 - GUJARAT HIGH COURT ). - impugned order so far as to the rejection of refund claim on the ground of being time barred under Section 11B of the Act is sustained. The rejection of refund claim on the ground that supply of goods between two EOUs, is not eligible for refund being a 'deemed export' is set aside - Decided partly in favour of assessee.
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