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TMI Blog2011 (9) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... r fixing the limit only physical exports and not deemed exports should have been taken into account. Thus clearances 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 Rule 5 of the Cenvat Credit Rule, 2004. Apex Court in the case of Virlon Textile Mills Ltd. v. Commissioner of C.Ex. Mumbai, 2007 (2007 -TMI - 1260 - SUPREME COURT OF INDIA), though not in identical situation while examining the nature of DTA sales to 100% export oriented units observed that DTA sales against foreign exchange or other supplies in India can be equated with physical exports. - The appeal of revenue is dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation granting benefit of deemed export. It is Revenue's case that only physical export would qualify for refund. We need not record the submissions at length since we find that similar issue was considered by a Division Bench of this Court in Tax Appeal No.968 of 2008. One of the questions posed before the Court was as follows: i. Whether in the facts and circumstances of the case, the Tribunal is justified and has committed a substantial error of law in dismissing the appeal of the Revenue and confirming the order of the learned Commissioner (Appeals) holding that the clearances 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 unutilize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that the decision of the Tribunal in the case of Sanghi Textiles Ltd. vs. Commissioner of Customs Central Excise (supra) was also challenged by the Revenue before the Apex Court and the Apex Court vide order dated 16.08.2007 dismissed the Revenue's appeal. While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd.(supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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