2017 (3) TMI 351 - AT - Central Excise

Refund claim - accumulated CENVAT credit availed on input services - clearances to 100% EOU - denial on the ground that the goods were cleared to EOU either under bond or under LUT and there was no physical export and hence, the assessee did not fulfill the requirement prescribed under Rule 5(1) - Held that - The Hon le High court of Gujarat in the case of CCE Vs. NBM Industries 2011 (9) TMI 360 - GUJARAT HIGH COURT has held that refund could not be denied on the ground that it was case of deemed export. Since the Apex Court as well as the High Courts have specifically held that deemed exports are equivalent to physical export and therefore keeping in view the precedents of the High Court and the Supreme Court, the clearances to an EOU is to be treated as export and refund of unutilized credit is allowed to the respondent-assessee - appeal dismissed - decided against appellant.

Summary

Issues:
Appeals against rejection of refund claims under Rule 5 of CENVAT Credit Rules for goods cleared to 100% EOU.

Analysis:
1. Common Issue in Appeals:
The Revenue filed six appeals challenging the rejection of refund claims by the Commissioner (A) for accumulated CENVAT credit availed on input services under Rule 5 of the CENVAT Credit Rules for goods cleared to 100% EOU. The Commissioner upheld the Order-in-Original, prompting the department's appeals.

2. Facts and Background:
The assessee filed refund claims for various quarters seeking refund of CENVAT credit. The goods were cleared to EOU without physical export, leading to a show-cause notice questioning the refund claims. The original authority sanctioned the refund based on judicial decisions, which the Commissioner (A) upheld, citing precedents treating clearances to EOU as exports.

3. Arguments and Counter-arguments:
The AR argued that Rule 5 applies only to physical exports, not deemed exports like clearances to EOU. The counsel for the assessee contended that various Tribunal and High Court decisions favor the assessee, emphasizing that even earlier appeals by the Revenue on the same issue were dismissed.

4. Precedents and Legal Interpretation:
The Tribunal's decision in CCE vs. Shilpa Copper Wire Industries, upheld by the Gujarat High Court, and the Supreme Court's dismissal of the Revenue's appeal support treating clearances to EOU as physical exports. The Supreme Court's ruling in Virlon Textile Mills Ltd. vs. CCE equating deemed exports to physical exports further strengthens the assessee's position.

5. Judgment and Conclusion:
Considering the consistent legal interpretations and precedents favoring the assessee, the Tribunal found no merit in the department's appeals. Upholding the impugned orders, the appeals were dismissed. The decision aligns with established legal principles and previous rulings, affirming the treatment of clearances to EOU as exports eligible for refund of unutilized credit.

This detailed analysis outlines the legal context, arguments presented, relevant precedents, and the Tribunal's decision in favor of the assessee based on established legal principles and consistent judicial interpretations.