TaxTMI 
TaxTMI 
2023 (5) TMI 331
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.... 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 India. Therefore, prior to March 1, 2015, export of goods did not mean taking to a place outside India. Period co....
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....laim 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 other than Nepal or Bhutan. 9. Further the refund claim has to be filed under rule 5 within the time limit specified in Section 11 B of the Central Excise Act, 1944. In the said Section the relevant date in relation to ....
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....s 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 export obligation as a concession under a separate provision namely Para 9.10 cannot automatically entitle the appellants to a duty concession under Para 9.9 and Notification No. 2/95CE, when the lawmakers have not specifically provided for inclusion of such domestic clearances ....
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....e 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 event or the transaction should be a physical export and not a deemed export-No impropriety in the circular found." The aforesaid observations of the Hon'ble CESTAT and the Madras High Court are squarely applicable to the facts and circumstances of the present appeal." 4.3 As the Commissioner ....
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....se 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 dismissed the Departments appeal against the decision of the Hon'ble Gujarat High Court NBM Industries [2009 (246) ELT 252 (T)] Refund under rule 5 of Credit Rules eligible in case of deemed export. Goods treated as intermediate goods. NBM Industries [2012 (276) ELT 9 (Guj.)] Departments appeal against Hon'ble Tribunals order dismissed by Hon'ble Gujarat High Court. Relies....
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....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 out of India. We are concerned with the goods sent to a 100% export processing zone, in terms of exemption notifications. We do not think it would be appropriate to apply 100% on the same footing as goods exported. Sending to a 100% export processing zone is only one step towards the process completion of export and cannot by itself conclude that export. We have noted that duty was not paid on the goods sent to....
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....itation 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 Act, 1944 (1 of 1944). As per Section 11B, time limit of one year has been prescribed for filing the refund claim which is evident from reading of Section 11B(1) reproduced below:- "SECTION [11B. Claim for refund of [duty and interest, if any, paid on such duty]. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [As....