2008 (1) TMI 746 - AT - Central Excise

Refund of unutilised CENVAT credit - Export - Deemed export - Held that - since the appellant in present case has not physically exported the goods but merely supplied the goods to 100% EOU the provisions of Rule 5 of Cenvat Credit Rules 2004 are not applicable and therefore the refund has been correctly denied - appeal allowed - decided in favor of Revenue.

Summary

Issues:
1. Refund claim under Rule 5 of the Cenvat Credit Rules, 2004 for unutilized credit balance.
2. Discrepancies in export documents and eligibility for refund.
3. Consideration of deemed exports for claiming refund of Cenvat credit.

Analysis:

Issue 1: Refund claim under Rule 5 of the Cenvat Credit Rules, 2004 for unutilized credit balance:
The appellants, engaged in manufacturing corrugated boxes, non-corrugated boxes, and labels, availed Cenvat credit for inputs used in manufacturing. They cleared goods to 100% EOU under CT-3 certificate without duty payment, leading to unutilized credit. The refund claim was rejected initially, citing discrepancies in goods description and lack of packing material details in export documents. However, the Commissioner (Appeals) allowed the refund, emphasizing that once goods are cleared against CT-3 certificate and received by EOU, the obligation to prove actual export lies with EOU, not the appellants. The credit was deemed admissible under Rule 5 and Notification 11/2002-C.E.

Issue 2: Discrepancies in export documents and eligibility for refund:
The Revenue contended that the packing material details were missing in export documents, and the appellants did not physically export goods manufactured using cenvatable inputs. The notifications did not cover third-party exports, and the conditions for refund were not met. The provisions under Rule 5 and related Notification referred to refunds for manufacturers who actually export, excluding deemed exports like supplies to EOUs. The Tribunal upheld the Revenue's appeal, emphasizing that the export must involve physical movement of goods out of India for refund eligibility.

Issue 3: Consideration of deemed exports for claiming refund of Cenvat credit:
The respondents argued that supplies to EOUs should be considered as deemed exports under the Import/Export Policy, making them eligible for benefits like refund of terminal export duty. They cited precedents treating deemed exports at par with physical exports. However, the Tribunal differentiated between deemed and physical exports, emphasizing that the Central Excise law defines exports as physical movement out of India. Deemed exports, as per EXIM Policy, do not align with Central Excise definitions, making the refund claim inapplicable for supplies to EOUs. The Tribunal's decision favored the Revenue, denying the refund claim based on the distinction between physical and deemed exports.

In conclusion, the Commissioner (Appeals)'s order was set aside, and the Revenue's appeal was allowed, emphasizing the need for physical exports to qualify for Cenvat credit refunds under Rule 5.