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2015 (11) TMI 1553 - CESTAT NEW DELHI

2015 (11) TMI 1553 - CESTAT NEW DELHI - TMI - Refund claim - Rule 5 of Cenvat Credit Rules, 2004 - supply of goods under International Competitive Bidding governed under the provisions of Foreign Trade Policy as deemed export - accumulated cenvat credit available in their books of accounts - Held that:- the issue is no more res-integra. In view of the decision of Hon'ble Gujarat High Court in the case of C.C.E. vs. NBM Industries [ 2011 (9) TMI 360 - GUJARAT HIGH COURT] and also the decision of .....

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nable. - Decided in favour of appellant - Excise Appeal No. E/51707 & 51708/2015-EX [SM] - Order No. 54006-54007/2015 - Dated:- 12-11-2015 - Mr. S. K. Mohanty, Member (Judicial) For the Appellant : Mrs. Sukriti Das, Advocate For the Respondent : Mr. M.R. Sharma, D.R. ORDER Per S. K. Mohanty The brief facts of the case are that the appellants are engaged in the manufacture of Hydel Gates and parts thereof falling under Chapter 73 of the First Schedule to the Central Excise Act, 1985. During the r .....

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ince the goods supplied by the appellants do not suffer any Central Excise duty, there was no scope for utilization of the accumulated cenvat credit available in the books of account. Therefore, the appellants filed two Nos. of refund applications under Rue 5 of the Cenvat Credit Rules, 2004, claiming refund of the accumulated cenvat credit available in their books of accounts. Both the authorities below have denied the refund benefit on the ground that Rule 5 ibid benefit shall be available onl .....

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ly of goods under the International Competitive Bidding as deemed export, for which there is no scope for payment of any excise duty in terms of the Notification dated 01.03.2006. Thus, according to the ld. Advocate, refund of unutilized cenvat credit on account of non-payment of duty on the finished goods should be available to the appellant in terms of Rule 5 of the Cenvat Credit Rules, 2004. To support her above stand, the ld. Advocate has relied on the judgment of Hon ble Gujarat High Court .....

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ld. Advocate are that the said decision was taken by the Tribunal, relying on another decision of Tribunal in the case of Commissioner vs. Tiger Steel Engineering India Pvt. Ltd. reported in 2010 (259) E.L.T. 375 (Tri.), the operation of which has been stayed by the Hon ble Bombay High Court, as reported in 2011 (263) E.L.T. A 104 (Bom.). Thus, according to the ld. Advocate, since the operation of the decision of the Tribunal in the case of Tricolite Electrical (supra) has been stayed, the same .....

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e benefit of refund under the Rule 5 of the Cenvat Credit Rules, 2004 has already been settled by this Tribunal in the case of Apotex Pharmachem India Pvt. Ltd. (supra), wherein this Tribunal vide para 13 has held as follows:- 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 Rule 5 of the Rules, in my considered opinion, is not legal and proper, in view of .....

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