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2016 (4) TMI 447 - CESTAT KOLKATA

2016 (4) TMI 447 - CESTAT KOLKATA - TMI - Entitlement for refund of accumulated Cenvat credit - Rule 5 of the CENVAT Credit Rules, 2004 - Finished goods supplied to deemed exports areas - Held that:- by relying on the decision of Hon’ble Gujrat High Court in the case of Commissioner of Central Excise and Customs Vs. NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT] which was relied upon their earlier decision in the case of Commissioner Vs. Shilpa Copper Wire Industries [2010 (2) TMI 711 - .....

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. 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 Commissioner of Central Excise and Customs Vs. NBM Industries - 2012 (276) E.L.T. 9 (Guj.). Ld. Consultant also rel .....

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es and perused the case records. The issue involved in the present proceedings is whether the appellant is entitled to refund of accumulated CENVAT Credit as per the provisions contained in Rule 5 of the CENVAT Credit Rules, 2004 when the finished goods are supplied to deemed exports areas. The appellant has relied upon the case law of CCE Vs. NBM Industries (supra) where Hon ble Gujarat High Court relying upon their earlier decision, in the case of Commissioner Vs. Shilpa Copper Wire Industries .....

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t 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 (Ap .....

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dering 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. (supra), Commissioner of Central Excise v. Ginni International Ltd. and Sanghi Textiles Ltd. v. Commissioner of Customs & Central Excise 2006 (206) E.L.T. 854 (Tri.-Bang.). So far as the decision of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. (supra) is concerned, it is true that the appeal is admitted by th .....

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, 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. 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, Ape .....

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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 respondent, we are of the view that no purpose will be served in keeping this matter pending, awaiting the out come of the Apex Court s decision in the case of Amitex Silk Mills Pvt. Ltd. (supra), especially when in two other matters, the Apex Court has already dismissed the appeals filed by the Revenue. 16. In the above fact s .....

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