TaxTMI 
TaxTMI 
2013 (10) TMI 1299
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....ase was decided by the Assistant Commissioner, Central Excise, Kalyan-I Division, vide impugned Order-in-Original who rejected the rebate claim. 3. Being aggrieved by the said Order-in-Original, the respondent filed appeal before Commissioner (Appeals), who decided the same in favour of respondent party. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 The term 'export' has not been defined under the Central Excise Act, 1944 or any Rules framed thereunder. The definition of 'export' given under the Customs Act, 1962 has been traditionally adopted for the purposes of the Central Excise Act, 1944 and the Rules thereunder. Therefore, in the absence of a definition of 'export' under the Central Excise Act, 1944, the Central Excise Rules, 2002 or the Cenvat Credit Rules, 2004 one has to look for its definition given under the Customs Act, 1962. 4.2 Section 2(18) of the Customs Act, 1962 defines 'export' as :- "'export' with its grammatical variations and cognate expressions, means taking out of Ind....
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.... meaning as defined under Section 2(18) of the Customs Act, 1962 and not as defined under Section 2(m)(ii) of the SEZ Act, 2005. 4.5 In the case of Commissioner of Central Excise v. M/s. Quality Screens, reported in 2008 (226) E.L.T. 608 (Tri.-Mumbai), it is held that in case of refund when claimed under Central Excise Act, there has to be physical export. Further, it is also viewed that the term "deemed export" is a creation of Exim Policy and is nowhere defined under the Central Excise Law. Since the rebate has been claimed under the Central Excise Law, the meaning of the export is to be derived from the Central Excise Act, 1944 and the Customs Act, 1962 where export has been defined as taking goods out of India. 5. A show cause notice was issued to the respondent under Section 35EE of Central Excise Act, 1944 to file their counter reply. However, no reply received from the respondent. 6. Personal hearing scheduled in this case on 7-8-2013 at Mumbai was attended by Shri A.S. Monappa, Advocate & Shri Dilip N. Patil on behalf of the respondent who stated the Order-in-Appeal being legal and proper may be upheld. Nobody attended hearing on behalf of applicant depart....
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....e goods are exported out of India and not when supplies are made to SEZ. 3. The matter has been examined. The Circular No. 29/2006-Cus., dated 27-12-2006 was issued after considering all the relevant points and it was clarified that rebate under Rule 18 is admissible when the supplies are made from DTA to SEZ. The Circular also lays down the procedure and the documentation for effecting supply of goods from DTA to SEZ, by modifying the procedure for normal export. Clearance of duty free material for authorised operation in the SEZ is admissible under Section 26 of the SEZ Act, 2005 and procedure under Rule 18 or Rule 19 of the Central Excise Rules is followed to give effect to this provision of the SEZ Act, as envisaged under Rule 30 of the SEZ Rules, 2006. 4. Therefore,, it is viewed that the settled position that rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made from DTA to SEZ does not warrant any change even if Rule 18 does not mention such supplies in clear terms. The field formations are required to follow the Circular No. 29/2006 accordingly." 9.3 Government notes that the judgment of Hon'ble CESTAT in the case of M/s. T....
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..... It is Revenue's case that only physical export would qualify for refund. We need not record the submissions at length since we find that similar issue was considered by a Division Bench of this Court in Tax Appeal No. 968 of 2008 [2011 (269) E.L.T. 17 (Guj.)]. One of the questions posed before the Court was as follows : "(i) Whether in the facts and circumstances of the case, the Tribunal is justified and has committed a substantial error of law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) holding that the clearances made by one 100% EOU to another 100% EOU which are "deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rules, 2004?" 3. The Division Bench after taking into account the detail submissions of the counsel appearing for the parties held and observed as under : "14. We have heard the learned Counsel appearing for the parties and after considering their submissions, we are of the view that the issue raised by the Revenue in the present Tax Appeal is squarely covered by....