2014 (9) TMI 368 - HC - Central Excise

Calculation of entitlement of DTA sale - 100% EOU - Exim Policy - whether deemed export is equivalent to physical export - held that - clearance 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 Rules 5 of the Cenvat Credit Rules, 2004. Following decision of Commissioner of Central Excise, Surat Versus M/s. Anita Synthetics Pvt. Limited 2010 (2) TMI 711 - GUJARAT HIGH COURT - Decided against Revenue.

Summary

Issues:
1. Appeal to quash Tribunal's judgment
2. Interpretation of 'free on board value of export'
3. Consistency with circular and previous decisions
4. Application of precedents in Tribunal's decision

Analysis:
1. The appellant, Commissioner of Central Excise & Customs, Surat, filed a Tax Appeal to challenge the Customs Excise & Service Tax Appellate Tribunal's (CESTAT) order dated 21-11-2012, which dismissed the appeal confirming the Commissioner's order. The appellant raised substantial questions of law regarding the Tribunal's reliance on previous decisions without discussing the facts, the interpretation of 'free on board value of export,' consistency with circulars, and the Tribunal's alignment with previous judgments.

2. The appellant argued that the Tribunal erred in dismissing the appeal solely based on a previous decision without discussing the specific facts of the case. The issue of whether the 'free on board value of export' includes the value of domestic clearance for extending benefits was raised. Additionally, the Tribunal's consistency with circulars and previous decisions was questioned.

3. The High Court noted that the Tribunal failed to analyze the factual position in detail and disposed of the appeal by referencing decisions, which was deemed improper. The Court emphasized the importance of analyzing each case individually and considering the specific details involved. As a result, the Court set aside the Tribunal's judgment and remitted the matter for further consideration.

4. However, the Court found that the issue in the present case was squarely covered by a previous decision confirmed by the Supreme Court. The Court determined that the issue raised was similar to the one addressed in the previous case, where certain clearances were treated as physical exports for refund purposes. As a result, the Court concluded that there was no need to remand the matter to the Tribunal and proceeded to consider the issue on its merits.

5. Ultimately, the Court found no reason to interfere with the Tribunal's judgment, as the issue was already addressed in previous decisions and did not raise any substantial questions of law. Therefore, the Court dismissed the appeal, upholding the Tribunal's decision in the case.