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2016 (3) TMI 343 - CESTAT MUMBAI

2016 (3) TMI 343 - CESTAT MUMBAI - TMI - Eligibility for refund of the unutilized CENVAT Credit - Credit lying in balance as they had cleared the goods under CT-3 to a unit situated in SEZ or otherwise under Rule 5 of the Cenvat Credit Rules,2004, read with Notification No. 5/2006-CE(NT) dated 14.03.2006 as amended - Held that:- Undisputed facts are the appellant is eligible to avail CENVAT credit of the inputs which are used for manufacturing of cables and wires, discharges appropriate duty on .....

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rmation of demands initiated by show-cause notices for erroneous refund sanction for more than one reason as there is no dispute as to the fact that the finished goods were cleared to an unit situated in SEZ which would amount to export as per the provisions of SEZ Act, more specifically Section 2(m) of the SEZ Act which states that any supply of goods or provisions of services from DTA to SEZ unit or SEZ developer has been defined to be as an export; Section 51 of the SEZ Act provides that this .....

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ember (T) For the Appellant : Shri Vinay Sejpal, Adv For the Respondent : Shri Ajay Kumar, Jt. Commr (AR) ORDER Per M V Ravindran All these appeals are disposed of by a common order as they pertain to the very same assessee and the issue raised is also the same. 2. The relevant facts that arise for consideration after filtering out unnecessary details are the appellant herein cleared finished goods i.e. "cables and wires" to an unit in SEZ during the period April 2007 to December 08. S .....

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In other two appeals the refund applications filed by the appellant were rejected by the adjudicating authority. Aggrieved by such orders, appellant preferred appeals before the first appellate authority. The first appellate authority also concurred with the views of the lower authority and upheld the order-in-original by rejecting the appeals vide impugned orders No. RBT/76/2010 dated 26.11.2010; RBT/84/2010 dated 30.11.2010 & RBT/78/2010 dated 30.11.2010. 3. Learned Counsel submits that th .....

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the following cases has held that clearances made to 100% EOU and are SEZ is on par with exports and refund has to be sanctioned of unutilized CENVAT credit: (a) Goa Invescast Ltd. CCE - 2015-TIOL-1837-CESTAT-MUM (b) Supreme Automech (I) Pvt. Ltd. v. CCE - 2015-TIOL-1725-CESTAT-MAD (c) CCE v. Anita Synthetics Pvt. Ltd. - 2014 (306) ELT 13 (Guj) (d) CCE v. Shilpa Copper Wire Inds. - 2011 (269) ELT 17 (Guj) 4. Learned D.R. on the other hand, would submit that the clearances made to SEZ cannot be .....

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that the clearances made to SEZ cannot be equated to physical exports as has been held by the Hon'ble High Court of Madras in the case of BAPL Industries Ltd. vs. Union of India - 2007 (211) ELT 23. It is his further submission that the refund claim which was sanctioned earlier was erroneous hence the show-cause notice issued for recovery of such erroneous refund claim was correct and the penalties imposed were also correct. 5. We have considered the submissions made at length by both sides .....

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les and wires, discharges appropriate duty on the final products and also clear the final product to a unit situated in SEZ. It is also undisputed that the appellant has, during the material period in these appeals, was unable to utilise the CENVAT Credit lying in balance as there were no home clearances and all the clearances were made to unit in SEZ without payment of duty but under bond. 6.3 In our considered view, the first appellate authority as well as the adjudicating authority were in er .....

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ed to be as an export; Section 51 of the SEZ Act provides that this Act shall have over riding effect any other law for the time being in force, which would mean that the provisions of SEZ Act needs to be referred to as to whether clearance of amount to export. If that be so on plain reading any clearances made by appellant to an SEZ unit during the material period in this appeal have to be considered as "export". 6.5 Secondly, we find that an identical issue fell for consideration of .....

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same has been denied on the ground that it was only a deemed export and not a real export. 2. Ld. Advocate on behalf of the appellants submits that the Hon'ble Supreme Court in the case of Virlon Textile Mills Ltd. [2007 (211) E.L.T. 353 (Supreme Court)] has held that deemed export are equivalent to physical export. Further, he also drew my attention to circular issued by the Board wherein draw back was allowed in respect of deemed exports also. He also cited the decision of the Tribunal in .....

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