AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 331
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....und claims under Rule 5 of Cenvat Credit Rules, 2004 as detailed in table below:- Sl. No. Period Amount 1. Oct. 2009 to Dec. 2009 Rs.34,51,586/- 2. Jan. 2010 to March 2010 Rs. 7,37,880/- 3. April 2010 to June 2010 Rs.18,88,778/- 4. July 2010 to Sept. 2010 Rs. 2,39,512/- 2.2 A show cause notice dated 01.07.2011 was issued to the appellant asking them to show cause as to why the refund claims filed by them should not be rejected. The show cause notice was adjudicated as per the order-in-original referred in para 1 above and the appeal filed by the appellant against the order-in-original has been rejected by the Commissioner (Appeals) as per the impugned order. Hence this appeal. 3.1 We have heard Shri Yogesh Patki, Advocate for the appellant and Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- Settled law that clearance to 100% EOU is export for the purpose of Rule 5 of the Cenvat Credit Rules. Amendment made to rule 5 w.e.f March 1, 2015 to specify that export of goods means to take goods to a place outside ....
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....ot eligible. But if filed at any time before export by Hikal and/or if filed within one year of export by Hikal, then eligible in both cases. Remand only for this limited purpose. Refund claim for January to March 2010 not barred by limitation as filed within one year of end of quarter: Poona Brush Co. v. CCE (Tribunal) reported in 2018 (363) ELT 678; John Kells BPO Solutions I. Pvt. Ltd. v. CCE (Tribunal) reported in 2016 (43) STR 473. 3.3 Arguing for the Revenue, learned AR reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner (Appeals) has in the impugned order observed as follows:- "8. As far as Central Excise is concerned, the procedure of export has been prescribed under the notifications issued under Rules 18 and 19 of the Central Excise Rules, 2002. From the notifications issued under the said rules it can be seen, that whenever 'export of goods' has been mentioned, it is always mentioned with reference to export of goods out of India, i.e. either to Nepal or Bhutan or to any country o....
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.... export and in itself cannot conclude export. The ratio of the above decision is fully applicable to the facts of the present case. By a fiction of law, goods cleared to 100% EOU have been equated with exports, Le, they are deemed export but such fiction of law is created only for a specific purpose and cannot be equated with exports in a blanket manner. Inasmuch as Rule 5 uses expression "export" and not "deemed export", the same has to be limited to the actual export". In the case of Jumbo bags Ltd. Vs. Commissioner of Customs, Chennai 2011(268)ELT81(tri-Chennai), CESTAT has observed as under, "Definitions of "Exports" under Customs Act, 1962 and under the Foreign Trade (Development & Regulation) Act, 1992 are similar and both mean taking goods out of India-Hence expression "50% of free on board value of exports appearing in Exim policy and Notification No. 2/95-CE. to be taken as referring to physical exports out of India No need to interpret the expression "exports" and to include clearances made within the country in its ambit whether such clearances are against foreign exchange or rupee payment-Fact that deemed exports are counted towards fulfillment of expo....
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....ct, 2005, the supplies to DMRC by availing Notification No. 6/2006-CE. which though deemed exports in terms of the provisions of EXIM policy, cannot be treated as export for the purpose of Rule 5 of Cenvat Credit Rules, 2004. Therefore, we are of the view that the provisions of this Rule are not applicable in respect of accumulated Cenvat credit on account of supplies to DMAC by availing full duty exemption under Notification No. 6/2006-CE. As regards supplies to 100% COUS, as rightly observed by the Commissioner (Appeals) there is no evidence that the goods have been used by those EOUS in manufacture of finished product which were exported out of India under bond." In the case of BAPL Industries Ltd. Vs UOI 2007(211)ELT 23(Madras) Hon'ble Madras High Court has held as under- "A physical export is not a deemed export-Concession granted to petitioner under Chapter 10 of EXIM Policy is deemed export and not an export, hence, cannot be extended for the local sale to DTA or the local sale made by 100% EOU to another 100% EOU CB.E. & C. Circular F. No. 305/48/2000-FTT/GO/Ministry of Finance, dated 7-4-2000 clearly says that in order to comply the DTA sale, the even....
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....B of Central Excise Ac, 1944." 5.1 For our consideration, following two questions arise:- (i) Whether Rule 5 of Cenvat Credit Rules, 2004 is applicable in the case where the intermediate goods are cleared to another EOU for the purpose of use in manufacture of goods which are finally exported - whether Rule 5 of Cenvat Credit Rules is applicable to the case of deemed exports. (ii) Whether the first two refund claims in the table are hit by limitation as provided by Section 11B of the Central Excise Act, 1944. 5.2 We find that the issue whether Rule 5 of Cenvat Credit Rules, 2004 is applicable in the case where the intermediate goods are cleared to another EOU for the purpose of use in manufacture of goods which are finally exported - whether Rule 5 of Cenvat Credit Rules is applicable to the case of deemed exports, is no more res integra and has been adjudicated in number of cases as listed below:- Shilpa Copper Wire Industries [2011 (269) ELT 17 (Guj.)] Refund under 5 of Credit Rules eligible in case of deemed export - clearance by one 100% EOU to another 100% EOU Shilpa Copper Wire Industries [2018 (361) ELT A84 (SC)] The Hon'ble Supreme Court ....
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....find force in the above contention of the appellants. There is nothing in the said Rule 5 of Cenvat Credit Rules, 2001 to suggest that the goods must be directly cleared from the factory for export and even if the inputs are used in the manufacture of intermediate products and final products which are ultimately cleared for export, refund of Modvat credit would be admissible. Inasmuch as, in the present case the fact that the goods were ultimately exported is not available on records, I remand the matter to the original adjudicating authority for verification of the said fact and decide the issue accordingly. Appeal is thus allowed by way of remand." 5.4 In the case of Blue Star Ltd. [2003 (155) ELT 322 (T)], following has been held:- "3. Counsel for the appellant next relies upon the decision of the Tribunal in Indian Aluminium Co. Ltd. v. CCE - 1995 (79) E.L.T. 111. In this decision, the Tribunal had applied the judgment of the Delhi High Court in Hindustan Aluminium Corp. Ltd. v. Superintendent - 1981 (8) E.L.T. 642 saying that the goods exported out of India in terms of Rules 12 and 13 are not exempted goods. We are in this case not concerned with the goods exported....
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....ice tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification." 5.8 In terms of the above Rules, Central Government has issued Notification No. 5/2006-CE(NT) dated 14.03.2006 prescribing the conditions and limitation for operation of Rule 5. Para 6 of the said notification is reproduced below:- "6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944)." 5.9 From the above, it is quite evident that para 6 specifically provides that refund claim has to be filed before the expiry of the period specified in section 11B of the Central Excise A....
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....to 17-6-2012) and Notification No. 27/2012 (w.e.f. 18-6-2012) (as amended) has specified the conditions in this regard. These notifications specify that such refund claims are to be filed within the period specified in Section 11B. The relevant date specified under the above section leaves no room for doubt as far as export of goods is concerned. However as far as export of services is concerned, the various sub-sections specifying relevant date under Section 11B do not cover the case of export of services. Further, the exporters of services have been given the option to file claims for such refunds once in a quarter and in respect of 100% EOUs, once in a month. The issue referred to Larger Bench is whether the time limit prescribed under Section 11B in respect of filing of refund claims is to be applied from the date of receipt of payment for export of services or can be considered from the end of the quarter in which such payments have been received. 10. After considering the provisions of the notifications issued under Rule 5 of the CCR, we note that there is a specific condition that the refund claims are required to be filed within the period specified under Section 1....