TaxTMI 
TaxTMI 
2026 (1) TMI 775
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....scellaneous Application filed for change of cause title is allowed and the Appeal is taken up for disposal. 3. The issue in the present appeal is regarding refund under Rule 5 of the CENVAT Credit Rules, 2004 for the exports by an 100% EOU to another 100% EOU. 4. The Respondent herein had filed refund claim of unutilized CENVAT credit as per Rule 5 of CENVAT Credit Rules as the credit availed on input and inputs services used for the manufacture of final products which were exported during July 2014 to September 2014. However certain objections were made and show cause notice was issued to restrict the refund amount on the ground that clearance was made in September 2014 and 'Let Export Order' (LEO) was issued in October 2014.....
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.... 75,14,695/- eligible as per Department). The Department contends that this excess is attributable to the inclusion of "deemed exports", which are not actual exports in the eyes of law for the purpose of Rule 5 refund. Notification No. 27/2012-CE (NT) dated 18.06.2012 specifies that the value of goods cleared "for exports during the quarter as per the monthly or quarterly return filed by the claimant" can be considered. However, this procedural aspect does not override the substantive requirement that the refund pertains only to goods exported out of India. Later amendments vide Notification No. 6/2015-CE(NT) dated 01.03.2015 inserted Explanation 1A to Rule 5, making explicit that "export goods" for the purposes of this rule means only thos....
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....t of India qualify as "exports" for Rule 5; supplies to 100% EOU within India do not qualify. 6. Learned Authorized Representative (AR) drew our attention to CBIC's communication vide F.No.96/85/2015.CX.I dated 7.12.2015, Minutes of Tariff Conference at Point B.24, wherein it is clarified that the benefit of refund under Rule 5 is not admissible for supplies to EOUs, even before the amendment. Since, departmental Circulars are binding on the department until set aside by a higher judicial authority. 7. Learned AR further submitted that as per the judgment of Hon'ble Supreme Court in Essar Steels Ltd Vs. Union of India, [2010 (255) ELT A115 (S.C.)], where the legislative scheme restricts refund to physical exports, deemed exports m....
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...., it is held that the issue has not attained finality. Learned Counsel further submits that the issue was considered by the Hon'ble High Court of Karnataka and appeal filed by the Department was dismissed by the Hon'ble High Court reported in Commissioner of Cus. & ST, Bangalore-II Vs. M/s. NASH Industries-[2017 (351) E.L.T 259 (Kar.)], relying on the decision of Hon'ble High Court of Gujarat in the matter of Commissioner Vs. M/s. Shilpa Copper Wires Industries [2011 (269) E.L.T 71 (Gujarat)] wherein the Department's appeal was dismissed by the Hon'ble Supreme Court of India. 9. Learned Counsel further submits that; the Original as well as the Appellate Authorities have given categorical findings in the respective orders while sancti....
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.... iii. Commr. of Central Excise Vs. NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT] iv. Commr. of Central Excise Vs. Shilpa Copper Wire Industries [2010 (2) TMI 711-GUJARAT HIGH COURT) v. Amitex Silk Mills Vs CCE Surat-I-[2005 (10) TMI 128- CESTAT, NEW DELHI] vi. M/s. Refron Valves Ltd. Vs. CCE Vadodara [2011 (8) TMI 235-CESTAT, AHMEDABAD] vii. Commr. Of C. Ex., Ahmedabad Vs. Rangdhara Polymers [2010 (1) TMI 637-CESTAT. AHMEDABAD] 10. Learned Counsel also submits that the issue raised in the present appeal is on the ground contradictory to the admitted facts on record that the goods in question were ultimately exported and that therefore denial of refund under Rule 5 of Cenvat Credit Rule....
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.... Supreme Court, in the matter of Union of India Vs. Essar Steel Ltd. (supra), Hon'ble Supreme Court while dismissing the appeal filed by the Revenue held that: "The Gujarat High Court, in the impugned judgment, held that export duty was not payable on movement of goods from DTA to SEZ units or developers. The Court noted that export was defined in Customs Act, 1962 as taking out of India to a place outside India and such definition or charging Section 12 ibid was not amended and charging provision was not inserted contemplating movement of goods from Domestic Tariff Area to Special Economic Zone as taxable event entailing export duty as in the case of export. The High Court further held that export duty was not leviabl....