TMI Blog2016 (4) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ith consequential relief - Excise Appeal No. 376/2012 - Order No : FO/A/75270/2016 - Dated:- 11-4-2016 - SRI H.K. THAKUR, TECHNICAL MEMBER For the Petitioner : Dr. B.N. Das, Consultant For the Respondent : Sri J. Bose, A.C. (A.R.) ORDER PER SRI H.K. THAKUR This appeal has been filed by the appellant against Order-in-Appeal No. 38/KOL-II/2012 dated-28/03/2012 under which Order-in-Original dated 12/6/2009 passed by the adjudicating authority, rejecting refund claim under Rule 5 of the CENVAT Credit Rules, 2004 , was upheld. 2. Shri B.N. Das, Consultant appearing on behalf of the appellant argued that the issue is no more res integra as the same has been decided by Hon ble Gujrat High Court in the case of Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) holding that the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not deemed exports should have been taken into account. It is also important to note that the decision of the Tribunal in the case of Sanghi Textiles Ltd. v. Commissioner of Customs Central Excise (supra) was also challenged by the Revenue before the Apex Court and the Apex Court vide order dated 16-8-2007 dismissed the Revenue s appeal. While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India (supra) is concerned, it is observed that while deciding the issue, Madras High Court was considering a CBEC Circular on deemed export and the issue before Madras High Court was not regarding refund of unutilized CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004. The case law of CCE Vs. NBM Industries (supra) is specifically on the issue of admissibility of refund under Rule 5 of the CENVAT Credit Rules, 2004 when finished goods are supplied to deemed export areas. Since the ratio laid down by the Hon ble Gujrat High Court in the case of CCE Vs. NBM Industries (supra) is squarely applicable to the present factual matrix, therefore, appeal filed by the appellant is allowed with consequential relief, if any. (Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
