TMI Blog2010 (2) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of this Court : (i) Whether in the facts and circumstances of the case, the Tribunal is justified and has committed a substantial error of law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) holding that the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rules, 2004? (ii) Whether in the facts and circumstances of the case, the Tribunal is justified and has substantially erred in law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) granting the refund contrary to Rule 5 of the Cenvat Credit Rules, 2004 as well as the refund of Rs. 5,21,009/-? 2. This Tax Appeal was admitted on 20-6-2009 and questions as proposed by the Revenue were formulated by this Court for determination and consideration. 3. During the pendency of this Tax Appeal, the Revenue has moved Civil Application No. 213/2008 for stay against the operation, implementation and execution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EOU as deemed export. (iv) The provisions of Rule 5 of Cenvat Credit Rules, 2002/2004 provide for refund of accumulated credit provided goods manufactured out of the raw materials procured on payment of duty, are exported. (v) The final product had been cleared to another 100% EOU and such clearance came under the category of deemed export. For coming to the said conclusion, reliance was placed on the decision in the case of Amitex Silk Mills Pvt. Ltd. vs. Commissioner of Central Excise, Surat-I, reported in 2006 (194) E.L.T. 344 (Tri.-Delhi). (vi) Though the matter decided by the Tribunal was of Domestic Tariff Area (DTA) sale entitlement, the Lower Appellate Authority relying upon the observations made by the learned Third Member in the said case, held that provisions itself make no distinction among various types of exports and also in terms of the provisions, per se, does not call for exclusion of any exports. (vii) The observation of the learned Third Member in the said judgment that the provisions of Rule 5 would apply not only to the physical export, but also to the deemed export and, therefore, the benefit of refund of unutilized Cenvat credit could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. He has, further submitted that the Tribunal has misread the Board Circular No. 220/54/96-CX., dated 4-6-1996 inasmuch as para-2 of the said circular only gave a direction that all such refund claims filed under the provisions of Rule 57F(4) of the Central Excise Rules, 1944 should be decided expeditiously. This mandate contained in the Board circular cannot be deemed to partake the character of mandating that in case of valid deemed export, the same were required to be treated as physical export and could not be relied upon to come to a conclusion that the refund was admissible in law. He has, further, submitted that earlier Tribunal s judgment in the case of Ginni International Ltd., was then challenged by the Revenue before the Hon ble Apex Court. He has further submitted that there was no justification in holding that the final products were cleared to another 100% EOU as deemed export were required to be treated as export and the refund of unutilized credit was required to be granted to the respondent-Assessee. He has, further, submitted that the Tribunal should have appreciated that the clearance made to M/s. Ramdev Corporation, another 100% EOU, was under bond executed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inhabiting the Revenue would appear to be the mention of F.O.B. , value in the provision. The Tribunal took the view that this need not stand in the way. F.O.B. is in contrast to C.I.F. Value, in other words, value that excludes freight and insurance payable in connection with the export to another country. A deemed export value does not include freight or insurance. Therefore, it is not an inflated value. It is an F.O.B. value. 12. The Tribunal has also considered the Board s Circular No. 220/54/96-CX., dated 4-6-1996, wherein the Board has observed that the matter has been examined by the Board. Cash refund of the unutilized Modvat credit is an incentive given to manufacturers and exporter and non-grant of such claim will affect the competitiveness of the Indian Industry in the International Market. Accordingly, all such refund claim filed under the provisions of Rule 57F(4) of the Central Excise Rules, 1944 should be decided expeditiously wherever the manufacturer is not able to utilize the credit of duty, allowed under Rule 57A against the goods exported during the quarter/month to which the claim relates. 13. The Tribunal has also dealt with the contention raised on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value. Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. 15. In view of the above settled legal position and considering the fact that the issue is settled by the Apex Court by those very judgments on which the Tribunal has placed reliance while deciding the case of the present respondent, we are of the view that no purpose will be served in keeping this matter pending, awaiting the outcome of the Apex Court s decision in the case of Amitex Silk Mills Pvt. Ltd. (supra), especially when in two other matters, the Apex Court has already dismissed the appeals filed by the Revenue. 16. In the above fact situation, we are of the view that no question of law much less any substantial question of law, arises out of the order of the Tribunal and even if it arises, the answer is very obvious and we, therefore, hold that the Tribunal is justified and has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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