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TMI Blog2013 (4) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... or the CENVAT Credit Rules, 2004, thus for purposes of the CENVAT Credit Rules, 2004, one should look for its definition given under the Customs Act. The fictionalized definition of export under Section 2 (m) (ii) of the SEZ Act cannot be looked for as it purports only to make the SEZ unit an exporter. The term export used in Rule 5 of the CENVAT Credit Rules, 2004 stands for export, which is physical export out of the country, envisaged under the Customs Act. Thus taking this view because, as already indicated, anybody other than SEZ unit cannot be allowed to claim any benefit under the SEZ Act/Rules. Viewed from this angle, the respondent cannot be held to be entitled to refund of accumulated CENVET Credit on the inputs used in our in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10.06.2003 appellant is neither eligible to avail the Cenvat Credit nor can claim any refund of said credit under Rule 5 of the Cenvat Credit Rules. Accordingly a Show Cause Notice was issued to the appellant proposing the rejection of refund claim. Said Show Cause Notice was adjudicated by the Deputy Commissioner vide order in original no. R-8/2011 dated 14.01.2011. Appellant preferred an appeal before Commissioner (Appeal) who vide impugned order rejected their appeal. Hence this appeal. 3. Ld. Counsel appearing for the appellant submits that in this case goods have been supplied to SEZ without payment of duty. Under Rule 6(6) (i) of the Cenvat Credit Rules once goods are supplied to SEZ, provision of sub-rule (1), (2), (3), (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared for home consumption or for export on payment of duty; or ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer of the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: Ongoing though Rule 5, we note that the Rule provides for refund of Cenvat Credit taken on input/input service used in manufacture of final product which is cleared for export. In this case goods are supplied to SEZ units by the appellant. Question before us is whether supplies made to SEZ can be treated as export. This issue came for to consideration before the Tribunal in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In other words, the term export used in Rule 5 of the CENVAT Credit Rules, 2004 stands for export, which is physical export out of the country, envisaged under the Customs Act. We take this view because, as we have already indicated, anybody other than SEZ unit cannot be allowed to claim any benefit under the SEZ Act/Rules. Viewed from this angle, the respondent cannot be held to be entitled to refund of accumulated CENVET Credit on the inputs used in our in relation to the manufacture of the Pre-fabricated buildings supplied by them to the SEZ units. Following the said decision, we are of the view the supplies made to SEZ cannot be treated as export for the purpose of Rule5 of the Cenvat Credit Rules and accordingly appellant is not en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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