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2016 (6) TMI 674 - CESTAT NEW DELHI

2016 (6) TMI 674 - CESTAT NEW DELHI - TMI - Cenvat Credit refund - Assistant Commissioner had sanctioned credit on the ground that respondent was unable to utilize the said credit on account of duty free clearance made by it to an EOU against CT-3 - Held that:- 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 C .....

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upheld the Order-in-Original dated 28.6.2006, in terms of which the Assistant Commissioner had sanctioned Cenvat Credit refund of ₹ 3,18,017/- under Rule 5 of of the Cenvat Credit Rules, 2002 on the ground that respondent was unable to utilize the said credit on account of duty free clearance made by it to an EOU against CT-3. 2. Revenue has filed this appeal against the order of Commissioner (Appeals) contending that to be eligible for refund under the said Rule 5, the goods should be exp .....

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sidered the contentions of both sides. We find that CESTAT in the case of Apotex Pharachem (I) Pvt. Ltd., Bangalore vs. C.C.E., Bangalore [Final Order No.A/21795 - 21797/2015 dated 7.7.2015, following the judgment of Gujarat High Court in C.C.E., Surat vs. Shilpa Copper Wire Industries(supra) held as under: 13. The findings recorded in the impugned order that physical export is not to be equated with deemed export, and thus the appellant is not entitled for refund of Cenvat Credit in terms of Ru .....

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