TMI Blog2015 (8) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as the documents referred to under clause (4) are only available in case of actual export and not deemed export. The appellant herein have admittedly failed to furnish the evidence of actual export in spite of opportunity in the second round of litigation. Thus, the rejection of claim by the learned Commissioner (Appeals) is correct and in accordance with law - refund not allowed - appeal dismissed - decided against appellant. - E/1040/2010 - A/89181/17/SMB - Dated:- 21-8-2015 - Shri Anil Choudhary, Member (Judicial) Shri N.S. Patel, Advocate for Appellant Shri H.M. Dixit, AC (AR) for Respondent ORDER Per: Shri Anil Choudhary The appellant is in appeal against Order-in-Appeal No.SB/31/Th1/2010 dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad preferred appeal before this Tribunal in Appeal No.E/3705/03. Vide final order dated 14.12.2005, this Tribunal remanded the matter back to the original adjudicating authority for verification that whether actual export have taken place and for adjudicating the refund claim accordingly. In the de novo proceedings, the adjudicating authority vide Order-in-Original dated 9.7.2008 has rejected the claim and ordered recovery of the earlier erroneously granted refund on the ground that the appellant could not prove or correlate that the goods were exported or not, as no documents were received by them nor they could get them, as M/s Haria Exports Ltd. had been closed for the last four years. Accordingly, it was held that mere submission of re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd among others that the adjudicating authority has exceeded the direction in the remand, which was for verification to the export made i.e. to verify the fact of export from the 100% EOU, which was not done and unnecessarily got into the issue of export vis-a-vis deemed export. The adjudicating authority was required to verify from his counterpart, having jurisdiction over the factory of M/s Haria Exports Ltd., a 100% EOU at Vapi and as such the impugned order is vitiated and fit to be set aside. It is further contended that Rule 5 of Cenvat Credit Rules does not require that the goods must be directly exported from the factory, even if the inputs are used in the manufacture of intermediate product and/or final products, which are wholly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Delhi-III -2012 (282) ELT 468 (Tri-Del), where in the case of cash refund, the accumulated credit in respect of inputs/input services used in manufacture of goods supplied to 100% EOU/SEZ, under Notification No.6/2006-CE, full duty exemption was availed. It was held that cash refund subject to condition of non-availment of input duty drawback or rebate under Rule 5 of the Cenvat Credit Rules, 2004 as applicable to inputs, if goods are cleared for export under Bond/Letter of Undertaking or used in manufacture of intermediate product for export. Although supplies to SEZ is treatable as export under Section 2(m) of SEZ Act, 2005, in absence of evidence of goods used by 100% EOU/SEZ in manufacture of finished goods exporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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