TaxTMI 
TaxTMI 
TaxTMI 
2026 (3) TMI 146
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...., as also for the deemed exports, wherein the goods were cleared from the appellant's unit to other 100% EOU. The Refund Sanctioning Authority (RSA) allowed refund only to the extent of Cenvat credit availed in relation to physical exports and in respect of Cenvat credit availed in relation to deemed exports was not refunded in cash and instead directed to remain posted in Cenvat credit account of the appellant. The adjudicating authority relied on the definition of 'export', as defined under Customs Act, which meant taking goods physically out of India to a place outside India and the fact that the term 'export' has not been otherwise defined under the CCR. He has also relied on the judgment in the case of M/s BAPL Industries Ltd Vs UOI [2007 (211) ELT 23 (Mad)]. 3. On appeal, the Commissioner (Appeals) upheld the original order of the RSA. The Commissioner (Appeals) also distinguished the reliance placed by the appellant in the case of CCE Vs Shilpa Copper Wire Industries Ltd [2011 (269) ELT 17 (Guj)], CCE Vs NBM Industries [2013 (29) STR 208 (Guj)] and El Dupont India Pvt Ltd Vs UOI [2014 (305) ELT 282 (Guj)] on the facts that the issue in the said case was not relating to cl....
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....e three issues, which need to be decided in these appeals, as under. a) Whether only actual exports are to be considered for grant of refund amount in terms of Rule 5 of CCR or even deemed exports have to be considered and b) Whether the amendment vide Notification No.06/2015 dt.01.03.2015 has got retrospective effect or otherwise. c) Whether the reliance placed by the appellants on the case of Shilpa Copper Wire Industries Ltd (supra) is applicable in this case or otherwise. 9. Insofar as (a) is concerned, we find that the refund of Cenvat credit is admissible in terms of Rule 5 of CCR and there is a procedure and formula for computing the same. This formula, inter alia, takes into account export turnover of the goods and the export turnover of the goods means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking. Similarly, Notification No.27/2012 dt.18.06.2012, which has been issued in terms of power conferred by Rule 5 of CCR, the claimant of the refund eligible under Rule 5 is governed by certain procedure, safeguards, c....
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.... refund can be availed only in circumstances of the assessee being primarily an exporter under bond or letter of undertaking, with negligible opportunity of domestic clearances; or an exporter of goods that are not liable to terminal excise duty. 6. This reasoning flows from the objective of the scheme of Cenvat credit to restrict levy of duties only to that value which has been added by the manufacturer to goods or by provider of services. In a tariff that is extensive, it is not possible to assign rates that accommodate stages of manufacture; the levy of duty to the extent of contribution to manufacture is facilitated by permitting debit of duty to the extent of liability contribution made in the prior stages. It is, therefore, not a mechanism for refund of duties that have already been loaded onto the goods but for restricting the levy to such as is intended by law. A harmonious construction of Rules 3, 5 and 6 of Cenvat Credit Rules, 2004 would amplify the intent : while, generally, input services/inputs used in manufacture/provision of exempt (including export) goods/services are excluded for consideration for the pool of credit under the Cenvat scheme, the compelling....
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....ilege of goods cleared to Special Economic Zone to the extent that such goods are in conformity with the definition of 'exports' in the Central Excise Act, 1944 and the rules framed therein. The benefit of Rule 18 of Central Excise Rules, 2002 and Rule 5 of Cenvat Credit Rules, 2004 are available. However, in the present instance, the impugned order has failed to demonstrate as such." 10. Similarly in the case of Jimtex Pvt Ltd Vs CCE, Thane-I [2015 (8) TMI 1411 - CESTT Mumbai], the Tribunal had examined the provisions under Rule 5 in terms of Notification No.11/2002, where the refund was rejected. They relied on the appendix to Notification No.11/2002, wherein, clause (4) provides that manufacturer is required to submit refund application along with Bill of Lading or Shipping Bill or export proof duly certified by any office of Customs, to the effect that the goods have in fact been exported and accordingly, upheld the rejection of refund claim. Therefore, in our considered view, the expression used in Rule 5 as well as notification connotes to physical export i.e., taking goods out of India and would not cover deemed exports. 11. Insofar as issue (b), which is whether the a....
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....lone the explanation can be considered clarificatory in nature and given retrospective effect from the inception of the original provision. Having regards to this, we find that, in the given factual matrix, as discussed supra, Rule 5 as well as Notification No.27/2012 clearly brings out that deemed exports were not covered and it was only relatable to physical exports i.e., taking the goods out of India. Therefore, in that sense, the amendment is not enlarging or putting somebody at disadvantage and it is only clarifying what was otherwise obvious in the rules and the notification. Thus, we find that there is force in the submission of the Revenue that in this case the amendment has to be treated as having retrospective effect. We beg to differ with the decisions in this regard by Coordinate Benches even though those decisions are not explicitly on this issue and has been made in respect of different issue altogether. 13. Insofar as issue (c) of whether reliance placed by the appellant on Shilpa Copper Wire Industries Ltd (supra), as upheld by Hon'ble Supreme Court is concerned, we have perused the judgment of Hon'ble Gujarat High Court (supra) and we find that the issue involve....