TMI Blog2013 (10) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Thane-I against the Order-in-Appeal No. YDB/174/Th-I/2011, dated 18-7-2011 passed by the Commissioner of Central Excise (Appeals), Mumbai-I with respect of Order-in-Original passed by the Assistant Commissioner of Central Excise, Kalyan-I Division. 2. Brief facts of the case are that the respondent filed a rebate claim of ₹ 51,274/- under Rule 18 of the Central Excise Rules, 2002 in respect of the goods cleared by them to M/s. ATC Tires Pvt. Ltd., SIPCOT, SEI, Tirunelveli. A show cause notice was issued to the assessee on the grounds that clearance to the SEZ could not be equated with that of export and that such clearances would not be eligible for grant of rebate under Rule 18 of the Central Excise Rules, 2002. The case was decided by the Assistant Commissioner, Central Excise, Kalyan-I Division, vide impugned Order-in-Original who rejected the rebate claim. 3. Being aggrieved by the said Order-in-Original, the respondent filed appeal before Commissioner (Appeals), who decided the same in favour of respondent party. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this revision application under Section 35EE of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Essar Steel Ltd. and Others v. Union of India Others, reported in 2009-TIOL-674-HC-AHM-Cus. = 2010 (249) E.L.T. 3 (Guj.), the Hon ble High Court of Gujarat held that for the levy of export duty on any goods, the goods should be shown to have been physically exported out of the country as envisaged under the provisions of the Customs Act, 1962. The Hon ble High Court further held that the movement of the goods from the Domestic Tariff Area to the Special Economic Zone has been treated as export by a legal fiction created under the SEZ Act, 2005. A legal fiction is to be restricted to the statute which creates it . The Hon ble High Court s aforesaid judgment supports the position that export has the same meaning as defined under Section 2(18) of the Customs Act, 1962 and not as defined under Section 2(m)(ii) of the SEZ Act, 2005. 4.5 In the case of Commissioner of Central Excise v. M/s. Quality Screens, reported in 2008 (226) E.L.T. 608 (Tri.-Mumbai), it is held that in case of refund when claimed under Central Excise Act, there has to be physical export. Further, it is also viewed that the term deemed export is a creation of Exim Policy and is nowhere defined under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid goods under claim of rebate on cover of ARE-1. 9.2 Government also notes that C.B.E. C. in its Circular No. 6/2010-Cus., dated 19-3-2010 (F. No. DGEP/SEZ/13/09) regarding rebate under Rule 18 on clearances made to SEZs has clarified as under : Sub. : Rebate under Rule 18 on clearances made to SEZs - Reg. A few representations have been received from various field formations as well as from various units on the issue of admissibility of rebate on supply of goods by DTA units to SEZ. 2. A view has been put forth that rebate under Rule 18 of the Central Excise Rules, 2002 read with Notification 19/2004-C.E. (N.T.), dated 6-9-2004 is admissible only when the goods are exported out of India and not when supplies are made to SEZ. 3. The matter has been examined. The Circular No. 29/2006-Cus., dated 27-12-2006 was issued after considering all the relevant points and it was clarified that rebate under Rule 18 is admissible when the supplies are made from DTA to SEZ. The Circular also lays down the procedure and the documentation for effecting supply of goods from DTA to SEZ, by modifying the procedure for normal export. Clearance of duty free material for authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even in absence of enabling provision that consider deemed export as physical export as in case of supply to SEZ, having been defined as export in terms of Section 2(m) of SEZ Act, 2005 read with Rule 30 of the SEZ Rules, 2006? 2. From the questions it can be seen that though two questions are framed, issue is common, viz. entitlement of the manufacturer to refund of Cenvat credit on inputs used in manufacture of goods cleared by DTA units to 100% export oriented unit. Case of the Revenue is that such refund is not available since Rule 5 of the Cenvat Credit Rules does not cover such a situation granting benefit of deemed export. It is Revenue s case that only physical export would qualify for refund. We need not record the submissions at length since we find that similar issue was considered by a Division Bench of this Court in Tax Appeal No. 968 of 2008 [2011 (269) E.L.T. 17 (Guj.)]. One of the questions posed before the Court was as follows : (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) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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 committed any 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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