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2016 (3) TMI 711 - CESTAT CHENNAI

2016 (3) TMI 711 - CESTAT CHENNAI - TMI - Denial of refund claim under Rule 5 of CCR - denial of claim on the ground that supplies made to EOU and SEZs are not qualified under Rule 5 of CCR - Held that:- On perusal of the OIO dt. 7.1.2011, there is no dispute on the fact that appellants are a EOU who supplied the goods to SEZs and EOUs under bond following the procedures. There are number of Tribunal and High Court decisions which have ruled that supplies made to SEZs and EOUs which are exported .....

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ld that supplies to SEZs are entitled to all benefits - Since the adjudicating authority has not examined the issue on merits, the impugned order is set aisde and matter is remanded to the adjudicating authority to process the refund claim on merits - Decided in favour of assessee by way of remand - Appeal No. E/40053/2014 - FINAL ORDER No.40482/2016 - Dated:- 17-3-2016 - Shri R. Periasami, Technical Member For the Petitioner : Shri M.S. Krishna Kumar, Advocate For the Respondent : Shri L.Paneer .....

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not qualified under Rule 5 of CCR. On appeal, the Commissioner (Appeals) upheld the order. 3. Ld. Advocate for the appellant submits that appellant supplied packing materials to SEZ as well as EOU by following the ARE-1 and ARE-3 procedures. He submits that supplies to SEZ and EOUs being exported they are entitled for all the benefits including the refund of credit under Rule 5. He submits that the adjudicating authority without examining the eligibility of the refund and the documents produced .....

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ecision in the case of Sai Wardha Power Ltd. Vs CCE Nagpur - 2015-TIOL-2823-CESTAT-MUM-LB, the appellant being an EOU cannot claim rebate and the Tribunal has no power to grant rebate. 5. After hearing both sides, I find that the short issue involved in the appeal is eligibility of refund claim under Rule 5 of CCR in respect of inputs/inputs services which are used in the final products which were supplied to SEZs and EOUs. On perusal of the OIO dt. 7.1.2011, there is no dispute on the fact that .....

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e High Court dismissed the Revenue appeal on this issue. The relevant paragraphs is reproduced as under :- 3. The Division Bench after taking into account the detail submissions of the counsel appearing for the parties held and observed as under : 14. We have heard the learned Counsel appearing for the parties and after considering their submissions, we are of the view that the issue raised by the Revenue in the present Tax Appeal is squarely covered by the decision of Amitex Silk Mills Pvt. Ltd .....

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. (supra) was also challenged before the Apex Court and the Apex Court vide decision reported in 2007 (215) E.L.T. A102 (S.C.) held while dismissing the Revenue s appeal against the Tribunal s order, that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. .....

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mmissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed 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 re .....

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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 contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004. 4. Co .....

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