TaxTMI 
TaxTMI 
2010 (2) TMI 711
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.... of the Cenvat Credit Rules, 2004? (ii) Whether in the facts and circumstances of the case, the Tribunal is justified and has substantially erred in law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) granting the refund contrary to Rule 5 of the Cenvat Credit Rules, 2004 as well as the refund of Rs. 5,21,009/-?" 2. This Tax Appeal was admitted on 20-6-2009 and questions as proposed by the Revenue were formulated by this Court for determination and consideration. 3. During the pendency of this Tax Appeal, the Revenue has moved Civil Application No. 213/2008 for stay against the operation, implementation and execution of the judgment and order dated 27-11-2007/6-2-2008 [2008 (226) E.L.T. 228 (Tribunal)] passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Appeal No. E/368/2006. The said Civil Application was rejected by this Court on 5-2-2010 [2010 (258) E.L.T. A20 (Guj.)], by observing that pursuant to the order passed by the Tribunal, the refund has already been received by the assessee and hence there is no question of staying the order passed by the T....
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....s placed on the decision in the case of Amitex Silk Mills Pvt. Ltd. vs. Commissioner of Central Excise, Surat-I, reported in 2006 (194) E.L.T. 344 (Tri.-Delhi). (vi) Though the matter decided by the Tribunal was of Domestic Tariff Area (DTA) sale entitlement, the Lower Appellate Authority relying upon the observations made by the learned Third Member in the said case, held that provisions itself make no distinction among various types of exports and also in terms of the provisions, per se, does not call for exclusion of any exports. (vii) The observation of the learned Third Member in the said judgment that the provisions of Rule 5 would apply not only to the physical export, but also to the deemed export and, therefore, the benefit of refund of unutilized Cenvat credit could not be allowed was held to be unsustainable. (viii) Placing reliance on the Board's Circular No. 220/54/96-CX., dated 4-6-1996 and more particularly in para 2 thereof, it was held that the refund even in case of deemed export by 100% EOU is admissible. 6. The appeal was, thus, allowed by the learned Commissioner (Appeals) and the impugned Order-in-Original was set aside. 7. Bei....
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....med to partake the character of mandating that in case of valid deemed export, the same were required to be treated as physical export and could not be relied upon to come to a conclusion that the refund was admissible in law. He has, further, submitted that earlier Tribunal's judgment in the case of Ginni International Ltd., was then challenged by the Revenue before the Hon'ble Apex Court. He has further submitted that there was no justification in holding that the final products were cleared to another 100% EOU as deemed export were required to be treated as export and the refund of unutilized credit was required to be granted to the respondent-Assessee. He has, further, submitted that the Tribunal should have appreciated that the clearance made to M/s. Ramdev Corporation, another 100% EOU, was under bond executed in Form B-17 but the Adjudicating Authority found that the said M/s. Ramdev Corporation had executed a bond for procurement of duty free raw materials and the clearances effected by the respondent-Assessee were not against its own B-17 bond, and therefore, the Tribunal should have held that the respondent was not entitled to the benefit of refund of unutilized Cenvat cr....
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....surance. Therefore, it is not an inflated value. It is an F.O.B. value. 12. The Tribunal has also considered the Board's Circular No. 220/54/96-CX., dated 4-6-1996, wherein the Board has observed that the matter has been examined by the Board. Cash refund of the unutilized Modvat credit is an incentive given to manufacturers and exporter and non-grant of such claim will affect the competitiveness of the Indian Industry in the International Market. Accordingly, all such refund claim filed under the provisions of Rule 57F(4) of the Central Excise Rules, 1944 should be decided expeditiously wherever the manufacturer is not able to utilize the credit of duty, allowed under Rule 57A against the goods exported during the quarter/month to which the claim relates. 13. The Tribunal has also dealt with the contention raised on behalf of the Revenue that the Tribunal has wrongly relied upon the earlier decision in case of Ginni International Ltd., in asmuchas the same was appealed against by the Revenue before the Hon'ble Supreme Court. The Tribunal further observed that an identical issue was considered by the Tribunal in subsequent judgment in case of Sanghi Textiles Ltd. decide....