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TMI Blog2009 (6) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the refund claims. 2. Heard both the sides and perused the records. 3. We find that there is no physical export but mere clearances to SEZ unit. The term export has been defined in the Customs Act, 1962 to mean taking out of India to a place outside India. Although the term export has been specifically defined in clause (m)(ii) of Section 2 of the SEZ Act, 2005 to mean supplying goods, or providing services, from the Domestic Tariff Area to a Unit or Developer and Section 51 of the SEZ Act, 2005 says that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time-being in force and the Boards Circular No. 29/2006-Cus., dated 27-12-2006 stipulates tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act shall be utilized for payment of ser vice tax on any output service. Explanation : For the purposes of this rules, the word output service which is exported means the output service exported in accordance with the Export of Services Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us. We note that the Assistant Commissioner in his order has observed that the respondents have not brought any evidence on record to show that the adjustment of the accumulated Cenvat Credit is not possible. Only when such adjustment is not possible that the refund of the accumulated credit in cash can be considered. Although the Commissioner (Appeals) has made general observation that the respondents have followed all legal and procedural requirements as per Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-C.E. dated 14-3-2006 yet how all the conditions and limitations prescribed in the said Notification have been fulfilled, have not been specifically dealt with by the Commissioner (Appeals) and no findings reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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