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M/s. Goa Invescast Ltd. Versus Commissioner of Customs & Central Excise, Goa

2015 (11) TMI 700 - CESTAT MUMBAI

Denial of refund claim - refund of unutilized Cenvat Credit - deemed export - whether the refund under Rule 5 and Notification issued thereunder is admissible in case of the deemed export i.e. supplies made to 100% EOU by the appellant from their DTA unit - Held that:- In the case of NBM Industries(2011 (9) TMI 360 - GUJARAT HIGH COURT) the Hon ble Gujarat High Court following their own judgment in case of Shilpa Copper wire Industries(2010 (2) TMI 711 - GUJARAT HIGH COURT ) held that deemed exp .....

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ing 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. - appellant is entitled for cash refund of accumulated Cenvat amount in terms of Rule 5 of Cenvat Credit Rules, 2004. - Decided in favour of assessee. - APPEAL NO. E/662/09 - .....

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resent case is whether the refund under Rule 5 and Notification issued thereunder is admissible in case of the deemed export i.e. supplies made to 100% EOU by the appellant from their DTA unit. 3. Shri. C.S. Birasdar, Ld. Counsel for the appellant submits that in Rule 5 neither any exclusion in respect of deemed export nor any bar for refund of accumulated credit is provided. Rule 5 applicable to export made under bond. In the present case, the goods were cleared to 100% EOU and the transactions .....

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Central Excise, Vadodara[2012(281) E.L.T 447(Tri. Ahmd.)] He submits that issue involved in the present case is squarely covered by the aforesaid judgments accordingly appellant is entitled for refund of accumulated Cenvat Credit in terms of Rule 5 and notification issued thereunder. 4. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as per the notification it is manda .....

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submission that refund under Rule 5 is applicable only if goods is exported out of India and not in respect of deemed export made to 100% EOU. In support of his submission, he placed reliance on following judgments: (a) BAPL Industries Ltd. Vs. Union of India[2007(211) E.L.T. 23 (Mad.)] (b) Commissioner of Central Excise, Pondicherry Vs. M/s. Bansal Metallic Oxides[2012-TIOL-477-CESTAT-MAD]. He also relied upon Hon ble Supreme Court judgment in the case of Virlon Textile Mills Ltd. Vs. Commissi .....

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case, since the required documents has prescribed under the notification was neither available nor submitted therefore refund claim is not admissible in view of the Apex Court judgment. 5. I have carefully considered the submissions made by both the sides and perused the record. 6. The fact of the case is not under dispute that appellant have supplied the goods under deemed export to 100% EOU and claimed cash refund of accumulated Cenvat Credit under Rule 5. The issue to be decided is whether t .....

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own judgment in case of Shilpa Copper wire Industries(supra) held that deemed export can be equated with physical export and accordingly the refund under Rule 5 cannot be denied on the ground that supply under deemed export and not under physical export. In the case of Shilpa Copper wire Industries(supra) the issue involved was refund under Rule 5 in a case where goods were supplied from one 100% EOU to another 100% EOU. The Hon ble Court held that the Tribunal is justified and has not committed .....

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