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2017 (1) TMI 89 - AT - Central Excise100% EOU - Refund claim - whether deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rules, 2004? - Held that - the issue is no more res integra and is covered in favour of the appellant by the decision of the Gujarat High Court in the case of CCE vs. Shilpa Copper Wire 2010 (2) TMI 711 - GUJARAT HIGH COURT , where it was held that the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004 - appeal allowed - matter remanded to verify the quantum of deemed export on the basis of the document produced by the appellant - appeal allowed by way of remand.
Issues:
Refund claim for unutilized credit of service tax availed by a manufacturer of polished granite slabs, tiles, and strips under Rule 5 of CENVAT Credit Rules, 2004; Allegation of claim prior to a specific date being liable for rejection; Appeal against the order of the Commissioner (A) allowing the Revenue's appeal and setting aside the refund sanction; Legal sustainability of the Commissioner (A)'s order; Applicability of judicial decisions in support of the appellant's case; Quantification of the refund amount and remand to the original authority. Detailed Analysis: 1. Refund Claim and Allegation of Rejection: The appellant, a manufacturer of granite products, filed a refund claim for unutilized credit of service tax availed on various input services used in the manufacturing and export process. A show-cause notice was issued, alleging ineligibility of the claim for the period before a specific date. The Assistant Commissioner initially sanctioned a refund, which was later challenged by the Revenue before the Commissioner (A) on the grounds of the nature of exports. 2. Appeal and Legal Sustainability: The appellant challenged the Commissioner (A)'s order, contending that it was not sustainable in law and contrary to decisions of higher judicial forums. The appellant relied on specific judicial authorities to support the argument against the rejection of the refund claim. The Revenue, represented by the learned AR, maintained the findings in the impugned order. 3. Judicial Decisions and Remand for Quantification: After hearing both parties, the Tribunal found that the issue was settled in favor of the appellant by a decision of the Gujarat High Court in a similar case. Consequently, the appeal was allowed, but the quantification of the refund amount was remanded to the original authority. The Tribunal directed the original authority to verify the quantum of deemed export based on documents provided by the appellant and to conclude the matter within a specified timeframe. 4. Operative Portion of the Order: The Tribunal pronounced the operative part of the order in open court on a specific date, granting the appeal by remanding the matter for quantification of the refund amount. The decision was based on the legal principles established by the Gujarat High Court, indicating a favorable outcome for the appellant pending verification of export details by the original authority. This detailed analysis covers the issues involved in the legal judgment, including the refund claim, rejection allegation, appeal process, legal sustainability, reliance on judicial decisions, and the remand for quantification, providing a comprehensive overview of the case and its resolution by the Tribunal.
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