TaxTMI 
TaxTMI 
2015 (10) TMI 2353
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....claim has been denied on the ground that clearance of goods to the 100% Export Oriented Unit (EOU) cannot be treated as physical export, and thus, refund of unutilized Cenvat credit is not permissible under Rule 5 of the Cenvat Credit Rules, 2004. Rejection of the refund claims in the impugned order (Adjudication Order wise) is summarized herein below:- Adjudication order reference Period On Limitation (Rs.) On Deemed Exports (Rs.) Total (Rs.) 22/2009 01.07.2007 to 11.08.2007 331,274 29,169 3,60,443 23/2009 Oct.-Dec 2007 - 22,494 22,494 24/2009 Jan-Mar 2008 - 4,40,373 4,40,373 TOTAL 331,274 4,92,036 8,23,310 2. Brief facts of the case are as under:- The appellant is a 100% EOU engaged in the manufacture of pharmaceutical products. During the dispute period, the appellant supplied certain quantities of these goods to another 100% EOU, namely M/s Apotex Research Pvt. Ltd. (located within India), under the procedure prescribed in the Foreign Trade Policy (FTP). As per the FTP, inter unit transfer of goods between two EOUs are treated as 'deemed export'. The appellant being a 100% EOU was no....
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....0% EOU to another 100% EOU will not be considered as 'physical export', the submissions of Shri Shivkumar, the ld. Advocate are that deemed exports are to be treated at par with physical exports for the purpose of refund of unutilized Cenvat Credit under Rule 5 of the Rules. For defending his case in this front, the ld. Advocate relied on the judgement of Gujarat High Court in the case of Commissioner of Central Excise-Vs.-Shilpa Copper Wire Industries, reported in 2011 (269) ELT 17 (Guj.) and Commissioner of Central Excise & Customs - Vs. - NBM Industries, reported in 2013 (29) STR 208 (Guj.) . 5. Per contra, Shri N. Jagdish. the ld. D.R. appearing for the revenue-respondent submitted that even though Section 11B of Act does not cover refund of Cenvat Credit, but Notification No. 5/2006-C.E.(N.T) dated 14.03.2006 issued under Rule 5 of the Rules, which adopts the limitation period under Section 11B of the Act, provides that the relevant date for filing the refund claim shall be confirmed to one year form the date on which the goods are cleared for 'deemed export'. the ld. D.R. relied on the judgement of Hon'ble Madras High Court, delivered in the case of Com....
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.... has neither been defined in Rule 5 of the Rules nor in the notification issued there under. Further, the said term defined in Section 11B of the Act is not compatible with the situation envisaged in the aforesaid rule. Therefore, there was ambiguity in interpreting the importance/significance of the term 'relevant date' in context with the said rule. The Hon'ble High Court of Madras in the case of GTN Engineering (supra), upon analysis of the provisions of Rule 5 of the Rules, Notification dated 14.03.2006 and Section 11B of the Act, have held that the date on which the export of the goods was made and for such goods, refund of Cenvat credit is claimed, should be construed as the relevant date for the purpose of Rule 5 of the Cenvat Credit Rules. The relevant paragraph in the said judgement is extracted below:- "15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, the relevant date must be the date on which the final products are cleared for export. If any other conclusion is arrived, it will result in disentitling any person to make a claim of refund of CENVAT credit. Admittedly, the respondent has made....
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....he respondent would rely upon a judgment of the Gujarat High Court reported in 2008 (232) E.L.T 413 (Guj.)[Commissioner of Central Excise and Customs, Surat-I v. Swagat Synthetics]. That was a case relating to sub-rule (13) of Rule 57F of Central Excise Rules, 1944. which reads as under:" "(13) Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in according with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilised by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette." The said rule does not prescribe any time-limit. In the absence of such prescribed as to the limitation, the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation." 13. ....