TMI Blog2008 (1) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... he case are that the appellants are engaged in the manufacture of corrugated boxes, non-corrugated boxes and labels and were availing Cenvat credit in respect of inputs used in the manufacture of such boxes. The appellants cleared some excisable goods to 100% EOU under CT-3 certificate without payment of duty. Since the goods were cleared without payment of duty, they could not utilize the Cenvat credit availed on the inputs used in the manufacture of goods cleared without payment of duty under CT-3 certificate, they accordingly filed a refund claim amounting to Rs. 1,69,395/- under Rule 5 of the Cenvat Credit Rules, 2004 in respect of the unutilized Cenvat credit balance for the quarter 1-1-2006 to 31-3-2006. The claim for refund was rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description, size of the packing material cleared by the assessee is not appearing on such documents. Further the assessee themselves have not exported the goods manufactured by them by consuming the cenvatable inputs. The notifications do not cover such eventuality of export of goods by third party and benefit of it is only to the manufacturer. The assessee has failed to satisfy the conditions of Notification that the excisable goods manufactured out of cenvatable inputs had been exported under bond and credit accumulated cannot be utilized by him as there is no clearance of excisable goods for home consumption on payment of duty. Provisions covering refund of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed export draw back and refund of terminal export duty. It was submitted that deemed exports are also exports and once the goods have been supplied to 100% EOU which fact is not denied by the department refund of unutilized Cenvat credit cannot be denied. In support of the same he referred to the decision of the Larger Bench of the Tribunal in the case of Jaipur Golden - 2007 (215) E.L.T. 503 (Tri.-LB) wherein it has been observed that the legislative intent has always been to treat the EOU and DTA units differently and EOU units are treated as units located outside India. Similarly in the case of CCE v. Amitex Silk Mills P. Ltd. - 2007 (216) E.L.T. 589 (Tri.-Ahmd.) it has been held that deemed exports are to be treated at par with phy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d differently from other domestic units and separate mechanism has been provided for the same. The decision holds that the nature of duty payable for D.T.A. clearance by 100% EOU is that of excise and it is only the measure of the duty, that it has been treated as an import. However such sales can never be treated as exports as otherwise all DTA sales by 100% EOU whether to 100% EOU or otherwise will have to be considered as export only and there would have been no requirement of payment of duty for DTA sales. The Tribunal decision in the case of Amitex Silk Mills P. Ltd. referred to by the ld. Consultant also nowhere states that deemed exports are to be treated at par with the physical exports. In fact this was the plea advanced by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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