9911796707
TMI Blog2024 (9) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods falling under Chapter falling under Chapter 72061090, 72111410 and 73144190. The appellant filed two refund claims between 29.03.2207 and 23.05.2007 for refund of accumulated Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004. The said refund claims is made against export, supply to Mega Power Project and to SEZ. 3. The Adjudicating Authority sanctioned the refund claimed to the appellant. The Revenue aggrieved from the said order sanctioning of the refund claim, filed appeal before the Ld. Commissioner (Appeal) on the ground the export goods means "any goods which are to be taken out of India to a place outside India" in terms of explanation (1A) of explanation 1 to Rules 5 of Cenvat Credit Rule, 2004 as in this case goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods which has been cleared to Mega Power Projects and SEZ units. Therefore, the appellant filed refund claim for accumulated Cenvat Credit under Rule 5 of Cenvat Credit, 2004. The said credit can be refunded in terms of CBEC circular no. 1001/8/2015 CE 8 dated 28.04.2015. For better appreciation of clarification given by CBEC the circular is extracted here below: "Kind attention is invited to Notifications No. 6/2015-CE (NT) and 82015-CE (NT), both dated 01.03.2015. vide which the meaning of export has been elaborated in both rule 5 of CENVAT Credit Rules, 2004 and rule 18 of Central Excise Rates 2002. Post these amendments, apprehensions have been expressed by the trade as to whether the following benefits would be available after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Unit or Developer shall clear the goods, as in the case of exports, either under bond or as duty paid goods under claim of rebate on the cover of ARE-1 referred to in Notification number 42/2001-Central Excise (NT) dated the 26th June, 2001 in quintuplicate bearing running serial number beginning from the first day of the financial year". 3. It can thus be seen that according to the SEZ Act, supply of goods from DTA to the SEZ constitutes export. Further, as per section 51 of the SEZ Act, the provisions of the SEZ Act shall have over riding effect over provisions of any other law in case of any inconsistency. Section 53 of the SEZ Act makes an SEZ a territory outside the customs territory of India. It is in line of these provisions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in this case the refund claim has been filed by the respondent with regard to the unutilised Cenvat credit lying in their cenvat credit account of clearance in 100% EOUS, mega projects and clearances the unutilised cum exporter against CT-1 certificates. These facts are not in dispute. The sole ground taken by the Revenue is that due to the contrary decisions of the Hon'ble High Courts and the respondent has not executed bond for the export of goods, the refund is to be rejected. 9. We find that the ground taken by the Revenue are contrary to law as the decision of M/s. Shilpa Copper supra) has been examined by the Hon'ble High Court of Karnataka in the case of Mis. Nash Industries reported in 2017- TIOL-588-HC-KAR-CX 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Apex Court has referred to its decision in the case of Ginni International Lid (Supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value Revenue cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was carried by the Revenue before the Apex Court in SLP No 19717/2010 and the Apex Court while dismissing the appeal vide order dated 6-1-2011 observed thus:- In view of the decision of this Court in the case of Virlon Textile Mills Ltd. v Commissioner of Central Excise, Mumbai, reported in 2007 (4) SCC (440)=2007-TIOL-69-SC-CX the special leave petition is dismissed. 10. As the issue on account of clearances 100% EOU mega projects has already been attained finality, therefore we hold that the Ld Commissioner (A) has rightly allowed the refund claims to the respondents." 12. As the appellant has cleared goods to Mega Power Projects and the SEZ units, therefore, the appellant is entitled for refund of accumulated Cenvat Credit lyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
