2018 (2) TMI 801 - AT - Central Excise

Refund of unutilized CENVAT credit - deemed export - Rule 5 of CCR - Held that - the Hon ble High Court of Gujarat in the case of A.I Dupont India Pvt. Ltd. 2014 (5) TMI 128 - GUJARAT HIGH COURT is essentially on the issue of binding precedence, where it was held that on inputs used in manufacture of goods cleared by TDA units to 100% EOU refund of CENVAT credit would be available to the assessee and it would not be denied on the ground that it was the case of deemed export and refund could be granted only in case of physical export - appeal dismissed - decided against Revenue.

Summary

Issues:
- Appeals filed by Revenue against refund orders under Rule 5 of Cenvat Credit Rules
- Treatment of deemed export as export
- Precedence of Tribunal decisions and High Court decisions on the issue

Analysis:
- The appeals were filed by the Revenue against orders allowing refund under Rule 5 of Cenvat Credit Rules. The Revenue argued that the appellant treated deemed export as export in their refund claims, which was not permissible. They cited Tribunal and High Court decisions to support their argument, emphasizing that deemed export cannot be equated to export.

- The respondent's representative highlighted that in similar circumstances, the Tribunal had allowed appeals in their favor in a previous case. They referred to the decision of the Hon’ble High Court of Karnataka and pointed out that in the appellant's own case, relief was granted by following specific Tribunal decisions, thereby distinguishing other Tribunal judgments on the matter.

- The judgment also referenced the decision of the Hon’ble High Court of Gujarat in a related case, emphasizing the importance of binding precedence. The High Court's decision in that case highlighted that failure to follow a direct binding precedent could lead to an appeal being allowed, as seen in the case of NBM Industries.

- Ultimately, the Tribunal, considering the precedents and the specific circumstances of the case, dismissed the Revenue's appeals based on the decision in the appellant's own case. This decision was pronounced in court on 28/12/2018, bringing clarity to the treatment of deemed export and the significance of following binding precedents in such matters.