TMI Blog2016 (6) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... gibility for refund of unutilized Cenvat credit - Rule 5 of the Cenvat Credit Rules 2004 - clearances made to other 100% EOU on inter unit transfer - Held that:- this Tribunal has allowed the refund claim filed by the respondent in its own case reported in [2015 (6) TMI 377 - CESTAT BENGLALORE]. Further the Hon’ble Supreme Court in the case of Virlon Textile Mills Ltd. Vs. CCE, Mumbai [2007 (4) TMI 6 - SUPREME COURT OF INDIA] has held that deemed export are equivalent to physical export. The Hon’ble High court of Gujarat in the case of CCE Vs. NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT] has held that refund could not be denied on the ground that it was case of deemed export. Since the Apex Court as well as the High Courts have specifically held that deemed exports are equivalent to physical export and therefore keeping in view the precedents of the High Court and the Supreme Court, I hold that clearances to an EOU is to be treated as export and refund of unutilized credit is allowed to the respondent-assessee. As far as application seeking additional grounds by the Revenue is concerned I allow the same on the ground that it is only an additional ground which is sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 10 to Sept. 10 20,05,045/- 8 E/20465/14 E/AE/22551/14 621-638/13 dt. 06.11.13 Oct. 10 to Dec. 10 21,83,233/- Since the impugned order is one and the issues in all the appeals are identical with different periods. Therefore I proceed to decide all the eight appeals by this common order. 2. Briefly the facts of the case are that respondent M/s. Nash Industries are engaged in the manufacture of Sheet Metal Pressed Components falling under Chapter Heading 85 of the Central Excise Tariff Act, 1985. They are availing cenvat credit on inputs and input services under Cenvat Credit Rules 2004. The respondents filed refund claims of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 in respect of inputs and input services such as Business Auxiliary Service, Chartered Accountant service, C F Service, Courier Service, GTA, Repair and Maintenance Service, Renting of immovable property service, Technical Testing and Analysis Service, Telephone service, Transport of Goods by Air, Online Information and Database access service, Manpower Recruitment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial decisions wherein it has been held that the clearances to an EOU is to be treated as export and refund of unutilized credit is to be allowed but as per the department this is not a valid ground for allowing refund of unutilized cenvat credit. Further the department has submitted that the definition of export as given in the Customs Act means taking out of India to a place outside India and therefore deemed exports are not the exports and the department has distinguished the judgments relied upon by the Commissioner for granting relief to the assessee. 3. On the other hand the learned counsel for the respondent contested the application seeking inclusion of additional grounds in the already filed appeal on the ground that the additional ground which is now sought to be included in grounds of appeal has not been allowed by the Commissioner who reviewed the order authorizing the Deputy Commissioner to file the present appeal and now the Revenue cannot include this ground without proper authorization or review order. He further submitted that the clearances made by the respondent to EOU should be considered as export for the purpose of refund and for this he relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to input services involved in these appeals, the learned Commissioner has relied upon various decisions of the Courts and the Tribunals and has also mentioned about the nexus. In this regard para 6.5 of the impugned order is reproduced herein: 6.5. The next issue is nexus of various input services and the manufacturing activity/business of the appellant is as follows: Sl. No. Nature of Service Nexus Relied upon decision 1 Business Auxiliary Services Charges paid for processing the goods related to production by Job workers Service in question to be treated as service in relation to business and hence covered by definition of input service under Rule 2(l) of Cenvat Credit Rules, 2004-credit admissible-Rule 2(l) ibid. Covered by case law Coca Cola India Pvt. Ltd. Vs. CCE 2009 (242) ELT 168 (HC) 2 Chartered Accountant Services Professional charges paid for Statutory Audit and certification charges Specifically covered under the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Management, Maintenance or Repair Services for goods, equipments or properties Charges incurred for maintenance and repair of machinery other equipments This is a valid input service by definition and also covered by the following decision : CCE Vs Lupin Ltd 2012 (28) STR 291 (Tri.) 9 Rent on Immovable Property Rental charges paid for the factory premises The said input service qualifies as an essential input service in terms of definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004 and covered by the following decision : Jeans Knit P Ltd Vs CC 2011 (21) STR 460 (Tri-Bang) 10 Security Agency Services Deployment of security at the factory premises This is a valid input service by definition of input services and also the decisions of Hon ble Tribunal in the case of Commr of CEx Hyderabad-IV V Delloitte Tax Services India Pvt Ltd 2008 (11) STR 266 (Tri.-Bang) 11 Online Information and Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Service Tax, Bangalore 2011 (23) STR 25 (Tri.-Bang.) 17 Transport of Goods by Air Services Air Freight Charges incurred for raw material inputs/consumables received for production, as well as outward air freight for sending components to customers This is a valid input service by definition and also covered by the following decision: CCE Vs Dellitte Services India Pvt. Ltd. 2008 (11) STR 266 (Tri.) 18 Membership of Clubs They receive various updates related to their manufacturing technology. It helps us to improve their business and new prospects The said input service is not an essential input service for output service exported. Refund disallowed. Therefore in view of the well reasoned finding of the Commissioner (Appeals) I am of the considered opinion that the findings given by the Commissioner (Appeals) are sustainable and there is no infirmity in it and the same is upheld. 5. Now coming to the second issue whether the appellant is eligible for refund of unutilized cenvat credit in respect of cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. 21747-21749/2014 this Tribunal has allowed the refund claim filed by the respondent. Further the Hon ble Supreme Court in the case of Virlon Textile Mills Ltd. Vs. CCE, Mumbai reported in 2007 (211) ELT 353 (S.C) has held that deemed export are equivalent to physical export. The Hon ble High court of Gujarat in the case of CCE Vs. NBM Industries reported in 2013 (29) STR 208 (Guj.) has held that refund could not be denied on the ground that it was case of deemed export. Since the Apex Court as well as the High Courts have specifically held that deemed exports are equivalent to physical export and therefore keeping in view the precedents of the High Court and the Supreme Court, I hold that clearances to an EOU is to be treated as export and refund of unutilized credit is allowed to the respondent-assessee. 6. As far as application seeking additional grounds by the Revenue is concerned I allow the same on the ground that it is only an additional ground which is sought to be added in the existing grounds of appeal. 7. In view of the foregoing the appeals filed by the department are rejected and cross objections filed by the respondent-assessee are allowed with conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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