TaxTMI 
TaxTMI 
2020 (1) TMI 232
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....o /2006- CE(NT) dt 14.03.2006 as amended by the Notification No 7/2010 CE(N) d 27.02.2010." 2.1 Appellant had claimed refund of accumulated CENVAT Credit amounting to Rs. 2,03,33,842/- in terms of Rule 5 of the CENVAT Credit Rules, 2004, in respect of the goods cleared by them to 100% Export Oriented Units, during the period from January 2010 to March 2010. 2.2 The refund claim filed by the appellants was rejected by the jurisdictional Assistant Commissioner as per his order referred in para 1, supra. 2.3 Aggrieved by the order of Assistant Commissioner, Appellant preferred the appeal before Commissioner (Appeals). This appeal was rejected upholding the order of Assistant Commissioner. While upholding the order of Assistant Commissioner, Commissioner (Appeal) has observed as follows: "7(iii) I find that there is no proof on the record that the CENVAT credit claimed to have been accumulated was admissible to them. Further, the appellants have not produced any evidence to show that the inputs on which CENVAT credit was availed by them were actually utilized in the manufacture of goods cleared to 100% EOUs. Further I also find that clearances of goods to 100% EOU do ....
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....¢ Uniworth textiles Ltd [2016 (341) ELT 438 (TDel)] • NBM Industries [209 (246) ELT 252 (T-Ahd)] • Shilpa Copper Wire Industries [2008 (226) ELT 228 (-Mum)] • Sanghi Textiles Ltd [2006 (206) ELT 854 (TBang)] • Rangdhara Polymers [2011 (264) ELT 275 (TAhd)] • Meghdoot Pistons Pvt Ltd [2011 (263) ELT610 (T-Del)] • Mano Handlooms [2009 (240) ELT 158 TChennai)] • Self Knitting Works [2007 (220) ELT 926 TDel)] • In view of the above settled position in law the appeal fled needs to be allowed. 3.3 Arguing for the revenue learned Authorized Representative submits that there are contrary decision on the subject in case of Quality Screens [2008 (226) ELT 6 (T-Mum)] and Tiger Steel Engineering Pvt Ltd [2010 (259) ELT 375 (T-Mum)]. The decision of tribunal in case of Tiger Steel Engineering has been stayed by Hon'ble Bombay High Court as reported at [2011 (263) ELT A104 (Bom)]. 4.1 We have considered the impugned order along with the submissions mad in appeal and during the course of arguments. 4.2 Rule 5 of CENVAT Credit Rules, 2004 as it existed at the material time reads as fol....
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....ocedure as may be specified by notification by the Board." In terms of Rule 19(3), Board has issued Notification No 42/2001-CE(NT) prescribing the conditions, safeguards and procedure for export under sub rule (1) and (2) of Rule 19. 4.4 From the wording of sub rule (3), "The export under sub-rule (1) or sub-rule (2)" it is very clear that clearances made in terms of sub-rule (1) and sub-rule (2) both are considered as export. This fact has been further clarified by the Board, in Manual of Central Excise, Chapter , Para 2, which reads as under- "2. Categories of Export- 2.1 There are two categories export without payment of duty- (i) Export of finished goods without payment of duty under bond or undertaking. (ii) Export of manufactured/ processed goods after procuring raw material without payment of duty under bond." 4.5 In respect of the goods cleared under rule 19(2) for the purpose of use in manufacture of goods to be exported Notification No 42/2001-CE (NT) prescribes the conditions and procedure as follows: "1. Conditions: - 1. that the exporter shall furnish a general bond in the Form specified in Annexure-I to th....
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....t does not exceed the credit available therein at any point of time; (c) ............ (d) .............. The Notification also prescribes the Format of Form CT-1, against which the goods to be procured for manufacture of goods to be exported is to be issued FORM CT-1 Certificate for procurement of excisable goods for export without payment of duty This is to certify that, 1. The exporter has furnished a Bond in Form [Specific/General]* for Rs___________________, which has been accepted by the Assistant Commissioner of Central Excise/the Deputy Commissioner of Central Excise in F.No. _______________________ on the _________day of the ___________(month) ___________ (Year). OR Mr./Messers. ______________________________(Name and address) is/are registered under rule 9 of Central Excise (No.2) Rules, 2001 in this Range, having registration number__________________________________has furnished an undertaking in the form specified under Notification No. /2001-Central Excise (N.T.) dated to the Assistant Commissioner of Central Excise/the Deputy Commissioner of Central Excise, _____________________(Name of the Division or t....
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....ting the scope of Rule 5 of CENVAT Credit Rules, 2004, to cases of the physical exports outside India will be contrary to the provisions of Central Excise Rules and Notifications issued under the said Rules. It is a settled principle of interpretation of statue that it should be interpreted strictly as per the expressed provisions/ language employed in the statue, without referring to any external aid. It is only in case of ambiguity that the reference could have been made to external aids or the definitions in the similar statue. Stating this principle Hon'ble Apex Court has in case of Doypack Systems Pvt Ltd [1988 (36) ELT 201 (SC)] stated as follows: "57. It has to be reiterated that the object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. That intention, and therefore the meaning of the statute, is primarily to be sought in the words used-in the statute itself, which must, if they are plain and unambiguous, be applied as they stand. In the present....
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....ared without payment of duty. If the goods were exempted goods, then the issue would not have been for refund of accumulated credit but for denial of the credit itself. There is no provision in the Central Excise Act or Rules other than Rule 19, which permits clearance of dutiable goods without payment of duty. There is no dispute in respect of this in the present case. 4.8 Hon'ble Gujarat High Court has in case of Shilpa Copper Wire Industries referred above has held on the same issue as follows: "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 nongrant 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....
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....While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value. Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. 15. In view of the above settled legal position and considering the fact that the issue is settled by the Apex Court by those very judgments on which the Tribunal has placed reliance while deciding the case of the present respondent, we are of the view that no purpose will be served in keeping this matter pending, awaiting the outcome of the Apex Court's decision in the case of Amitex Silk Mills Pvt. Ltd. (supra), especially when in two other matters, the Apex Court has already dismissed the appeals filed by the Revenue." Following the decision of the Gujarat High Court, Hon'ble Karnataka High Court has in case of Nash Industries [2017 (351) ELT 259 (Kar)] held as follows: "4.We may r....
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.... "Whether the Tribunal is justified in allowing the refund of the Cenvat credit availed on inputs used in manufacturing the goods cleared by the DTA unit to a 100% (EOU) under Rule 5 of the Cenvat Credit Rules by treating it to be deemed export." 5. The aforesaid precise question had come up for consideration before the Gujarat High Court in the case of Commissioner of Central Excise and Customs v. NBM Industries - 2012 (276) E.L.T. 9 (Guj.). The Division Bench of the Gujarat High Court relying upon its earlier Division Bench decision in Commissioner of Central Excise v. Shilpa Copper Wire Industries - 2011 (269) E.L.T. 17 (Guj.) and unreported decisions of the Supreme Court in Ginni International Limited - 2007 (215) E.L.T. A102 (S.C.), Amitex Silk Mills Private Limited, and Sanghai Textiles Limited wherein it was held that the Revenue cannot dispute that deemed export should not have been taken into account for the purposes of refund under the Rules, and thus, the Tribunal has not committed any error of law in treating the sale made to the 100% (EOU) as deemed export for the purposes of entitlement of refund of unutilized Cenvat credit contemplated under Rule 5 of the....