2016 (4) TMI 447 - AT - Central Excise

Appeal allowed, deeming clearances to deemed export areas as physical exports for CENVAT Credit refunds.

M/s. Alom Extrusion Ltd. Versus M/s. Commr. of Central Excise, Kolkata-II

The appeal was allowed, granting relief to the appellant, based on the legal precedent set by the Hon'ble Gujarat High Court that clearances to deemed ... Entitlement for refund of accumulated Cenvat credit - Rule 5 of the CENVAT Credit Rules, 2004 - Finished goods supplied to deemed exports areas - Held that:- by relying on the decision of Hon’ble Gujrat High Court in the case of Commissioner of Central Excise and Customs Vs. NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT] which was relied upon their earlier decision in the case of Commissioner Vs. Shilpa Copper Wire Industries [2010 (2) TMI 711 - GUJARAT HIGH COURT], the appellant is entitled to refund of accumulated Cenvat credit when finished goods supplied to deemed exports area. - Decided in favour of appellant with consequential relief Issues:Entitlement to refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 when finished goods are supplied to deemed export areas.Analysis:The appeal was filed against the Order-in-Appeal upholding the rejection of a refund claim under Rule 5 of the CENVAT Credit Rules, 2004. The appellant argued citing the decision of the Hon'ble Gujarat High Court in a specific case and a Government of India decision that deemed export to a 100% EOU should be considered as physical export. On the other hand, the Revenue relied on a judgment of the Hon'ble Madras High Court stating that deemed export cannot be equated to physical export. The main issue revolved around whether the appellant is entitled to a refund of accumulated CENVAT Credit when finished goods are supplied to deemed export areas.The Tribunal referred to the Hon'ble Gujarat High Court's decision in the case of CCE Vs. NBM Industries, which held that clearances made by one 100% EOU to another 100% EOU, deemed as exports, should be treated as physical exports for the purpose of refund of unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004. The Tribunal noted that the issue was already settled by the Apex Court in related cases, emphasizing that deemed exports should be considered for refund entitlement. Consequently, the appeal filed by the Revenue was dismissed based on this legal precedent.Regarding the judgment of the Madras High Court in the case of BAPL Industries Ltd. Vs. Union of India, it was clarified that the issue addressed was not directly related to the refund of unutilized CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004. The Tribunal highlighted that the decision of the Hon'ble Gujarat High Court in the CCE Vs. NBM Industries case specifically addressed the admissibility of refunds when finished goods are supplied to deemed export areas. Given the applicability of the Gujarat High Court's ruling to the current situation, the appeal filed by the appellant was allowed, granting consequential relief as applicable.In conclusion, the Tribunal's decision was based on the legal interpretation provided by the Hon'ble Gujarat High Court, establishing that clearances to deemed export areas should be treated as physical exports for the purpose of refund under Rule 5 of the CENVAT Credit Rules, 2004. The judgment emphasized the importance of legal precedents and settled legal positions in determining the entitlement to CENVAT Credit refunds in cases involving deemed exports.