TMI Blog2015 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... hat DTA unit clearing goods to 100% EOU can be termed as export for the purpose of allowing DTA unit to claim refund of unutilized CENVAT credit. Under the circumstances, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law so as to warrant interference. - Decided against Revenue. - Tax Appeal No. 836 of 2014 - - - Dated:- 10-9-2014 - Harsha Devani And Sonia Gokani, JJ. For the Appellant : Mr Y N Ravani, Adv ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1. The appellant-Commissioner of Central Excise and Customs, in this appeal under section 35G of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s read with Notification No.5/2006- CE(NT) dated 14th March, 2006 for unutilised CENVAT Credit (for the period from April-2010 to March-2011) lying in balance on account of clearances to a 100% EOU under ARE-3/CT-3 without payment of duty. The Assistant Commissioner, Central Excise, Division-II, Rajkot, issued a show cause notice dated 31st January, 2012, proposing to reject the refund claimed. The show cause notice came to be adjudicated by an Order-in-Original dated 24th May, 2012, whereby the proceedings were dropped in the light of the decision of the Supreme Court in the case of M/s. Shilpa Copper Wire Industries and M/s.Amitex Silk Mills Pvt. Ltd. Accordingly, refund to the tune of ₹ 76,98,104/- came to be sanctioned under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner under Chapter 10 of EXIM Policy is deemed export and not an export and, hence, cannot be extended for local sale to the DTA or local sale made by a 100% EOU to another 100% EOU. It was, accordingly, urged that the appeal requires consideration and is required to be admitted on the questions as proposed or as may be deemed fit by this court. 4. This court has perused the impugned order passed by the Tribunal as well as the orders passed by the lower authorities and has considered the submissions advanced by the learned counsel for the appellant. As can be seen from the impugned order, the Tribunal has placed reliance upon a decision of this court in the case of Commissioner of Excise and Customs v. NBM Industries Pvt. Ltd., 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and dispute it holding that for fixing the limit only physical exports and not deemed exports should be taken into account. The court also took note of the fact that against the decision of the Tribunal in the case of Sanghi Textiles Ltd. v. Commissioner of Customs and Central Excise, the revenue had preferred appeal before the Supreme Court which came to be dismissed by reiterating what was held in Ginni International Ltd. 5. Insofar as the decision of the Madras High Court on which reliance has been placed on behalf of the revenue, the Tribunal found that there was a decision of the jurisdictional High Court directly on the issue and was therefore, bound by it. The Tribunal further observed that the Supreme Court in the case of Virlon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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