TMI Blog2011 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent: Rep. by Mrs. R. Jagdev, SDR Per Rakesh Kumar: The appellants are a 100% Export Oriented Unit engaged in the manufacture of Connector and Connector assembly for export. They availed cenvat credit of central excise duty paid on inputs and service tax paid on services used in or in relation to the manufacture of their final products. The appellants have physical exports out of India and also deemed export i.e. supplies to other 100% EOUs. Since the appellant could not utilize the cenvat credit availed by them for payment of duty on the goods cleared to DTA, as they had no DTA clearances, they applied for cash refund from time to time of the accumulated cenvat credit in terms of provisions of Rule 5 of the Cenvat Credit Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OU without payment of duty, that this issue stands decided in favour of the appellant by the judgements of (a) Hon'ble Gujarat High Court in the case of CCE, Surat Vs. Shilpa Copper Wire Industries reported in 2011 (269) ELT 17 (Gujarat), (b) Tribunal's judgement in the case of CCE, Surat Vs. Shilpa Copper Wire Industries reported in 2008 (226) ELT 228 (Tribunal-Ahmd.), which was upheld by the Hon'ble Gujarat High Court vide judgement reported in 2010 (258) ELT A20, (c) Tribunal's judgement in the case of Cauvery Stones Impex Private Ltd. Vs. CCE, Salem reported in 2010 (257) ELT 151 (Tribunal-Chennai), (d) NBM Industries Vs.CCE, Rajkot reported in 2009 (246) ELT 252 (Tribunal-Ahmd.), and (e) Neo Foods Pvt.Ltd. Vs. CCE, Bangalore reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in it and pleaded that from the language of Rule 5 of the Cenvat Credit Rules, 2004, it is clear that it provides for cash refund of cenvat credit accumulated on account of physical exports, that supplies to 100% EOU are only deemed exports to which the provisions of Rule 5 are not applicable, that as per the provisions of para 8.3 of the Foreign Trade Policy, 2004, a person in respect of deemed export is eligible for only three benefits, advance authorization, deemed export draw back and exemption from terminal excise duty, that in view of the provisions of Exim Policy, the appellant cannot claim the additional benefit of cash refund of the accumulated cenvat credit, which is not mentioned in para 8.3 of the Exim Policy, 2004-2009, that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts for manufacture of final products for export and supplies to 100% EOU have to be treated as clearances for export. Hon'ble Gujarat High Court in another judgement in cae of CCE Vs. NBM Industries reported in 2011 TIOL 677-HC-AHM (CX) has reiterated its earlier view that refund under Rule 5 of Cenvat Credit Rules, 2004 can not be denied on the ground that deemed exports are not physical exports. In view of settled legal position on this issue, I hold that the provisions of Rule 5 of the Cenvat Credit Rules would be applicable even in respect of supplies made without payment of duty to 100% EOUs and the cash refund of the accumulated cenvat credit in respect of such supplies cannot be denied. 6. As regards the second issue regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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