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2011 (8) TMI 235 - AT - Central ExciseRefund - 100% EOU - Rule 5 of CENVAT Credit Rules 2004 - disallowed on the ground that refund of accumulated credit can be allowed only in the case of physical export and not in the case of deemed export - The Hon ble High Court in CCE Vs. Shilpa Copper Wire Industries (2010 -TMI - 205858 - GUJARAT HIGH COURT) upheld the view taken by Tribunal that the clearances made by one 100% EOU to another 100% EOU which are deemed export are to be treated as physical export for the purpose of granting refund of unutilized CENVAT Credit contemplated under the provisions of Rule 5 of CENVAT Credit Rules 2004 - Decided in favor of assessee.
Issues:
Refund of accumulated credit for goods cleared to another 100% EOU under Rule 5 of CENVAT Credit Rules, 2004 - Physical export vs. deemed export. Analysis: The judgment dealt with the issue of refunding accumulated credit for goods cleared to another 100% EOU under Rule 5 of CENVAT Credit Rules, 2004, specifically focusing on whether such refunds can be granted in the case of deemed export as opposed to physical export. The appellant, a 100% EOU manufacturing goods under Chapter 84 of Schedule to Customs Excise Tariff Act, 1985, claimed a refund for goods cleared to another 100% EOU in May and June 2008 due to the inability to utilize accumulated credit. The claim was initially disallowed on the grounds that refunds of accumulated credit were only permissible for physical exports and not deemed exports. During the proceedings, the appellant cited conflicting decisions from various Tribunals to support their case. Notably, the appellant referenced the Tribunal's decisions in the cases of Manoj Handlooms Vs. CCE Chennai and NBM Industries Vs. CCE Rajkot, while the ld.JDR relied on decisions in the cases of Inox Air Products Ltd. Vs. CCE Rajkot and S.V. Business Pvt. Ltd. Vs. CCE Thane-I. The appellant's counsel highlighted the recent decision of the Hon'ble High Court of Gujarat in the case of CCE Vs. Shilpa Copper Wire Industries, which clarified the eligibility for refund of unused accumulated CENVAT Credit for clearances made to another 100% EOU. The High Court upheld the Tribunal's view that clearances between 100% EOUs, even if deemed exports, should be treated as physical exports for refund purposes under Rule 5 of CENVAT Credit Rules, 2004. In contrast, the ld.JDR mentioned a decision of the Hon'ble High Court of Madras in the case of BAPL Industries Ltd. Vs. UoI, where the court discussed a circular equating deemed export with physical export. However, it was noted that this decision was not directly relevant to the case at hand as it did not address the provisions of Rule 5 of CENVAT Credit Rules, 2004 or the admissibility of refunds for unutilized CENVAT Credit. Ultimately, the Tribunal, following the precedent set by the Hon'ble High Court of Gujarat, allowed the appeal and granted consequential relief to the appellant, emphasizing the applicability of the High Court's decision to the facts of the case.
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