2013 (4) TMI 526

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....eferred to as appellant) against order in appeal no. 105-CE/MRT-I/2012 dated 25.04.2012. 2. Brief facts of the case are that appellant had filed a refund claim of Cenvat Credit of Rs. 12,87,520/- on 05.05.2010 under Rule 5 of the Cenvat Credit Rules 2004 in respect of unutilized Cenvat Credit of duty/service tax paid on input/input service used in export of final product during period 01.10.2009 to 31.03.2010. Under Rule 6(1) of the Cenvat Credit Rule 2004, Cenvat Credit is not admissible on such quantity of input/input service which is used in the manufacture of exempted goods or services except in the circumstances mentioned in sub-rule(2). Since final products manufactured by the appellant are fully exempt under notification 50/2003-C....

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....ssue involved in this appeal is eligibility of refund claimed by the appellant under Rule 5 of the Cenvat Credit Rule in respect of inputs/input services used in final products supplied to SEZ, Rule 5 of the Cenvat Credit Rules reads as under:    5. Refund of CENVAT credit Where any input of input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of,    (i) d....

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....upplied to SEZ units under Letter of Undertaking. However, the question arises as to whether such supply of goods to SEZ units was an export. At no time was the term export defined under the Central Excise Act or any Rules framed there under. The definition of export given under the Customs Act has been traditionally adopted for purposes for the Central Excise Act and the Rules thereunder. Therefore, in the absence of a definition of export under the Central Excise Act, the Central Excise Rules or the CENVAT Credit Rules, 2004, we hold that for purposes of the CENVAT Credit Rules, 2004, one should look for its definition given under the Customs Act. The fictionalized definition of export under Section 2 (m) (ii) of the SEZ Act cannot be loo....