2015 (11) TMI 700

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....the present case is whether the refund under Rule 5 and Notification issued thereunder is admissible in case of the deemed export i.e. supplies made to 100% EOU by the appellant from their DTA unit. 3. Shri. C.S. Birasdar, Ld. Counsel for the appellant submits that in Rule 5 neither any exclusion in respect of deemed export nor any bar for refund of accumulated credit is provided. Rule 5 applicable to export made under bond. In the present case, the goods were cleared to 100% EOU and the transactions is of deemed export therefore Rule 5 covers not only physical export out of India but also deemed export i.e. supply made to 100% EOU. He placed reliance on following judgments:  (a) Commissioner of Central Excise and Customs V....

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.... placed reliance on following judgments: (a) BAPL Industries Ltd. Vs. Union of India[2007(211) E.L.T. 23 (Mad.)]  (b) Commissioner of Central Excise, Pondicherry Vs. M/s. Bansal Metallic Oxides[2012-TIOL-477-CESTAT-MAD]. He also relied upon Hon'ble Supreme Court judgment in the case of Virlon Textile Mills Ltd. Vs. Commissioner of C. Ex. Mumbai[2007(211)E.L.T.353(S.C.)]. He submits that in the Notification issued under Rule 5 requirement of specific documents for processing claim clearly shows that this refund is applicable only in a case of physical export and not for deemed export. Hon'ble Supreme Court in the case of Commissioner of C. Ex., New Delhi Vs. Hari Chand Shri Gopal[2010(260)ELT 3(SC)] held that condit....

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....e 100% EOU to another 100% EOU. The Hon'ble Court held that the Tribunal is justified and has not committed any 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. In another judgment of Hon'ble Gujarat High Court in case of the Anita Synthetics Pvt. Ltd held that clearances made by one 100% EOU to another 100% EOU, such deemed exports are to be treated as physical exports for the purpose of being ....