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TMI Blog2014 (2) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellant : Shri S.J. Vyas, Advocate For the Respondent : Shri J. Nair, A.R. JUDGEMENT Per : Mr. M.V. Ravindran; When this stay petition was called out, learned counsel submits that the issue is now squarely covered by the judgment of Hon ble High Court of Gujarat in the case of NBM Industries -2012 (276) ELT 9 (Guj.). It is his submission that appeal itself be disposed of. 2. After hearing both sides on the stay petition and perusal of the records, we find that the appeal itself could be disposed of as it lies in a narrow compass. Accordingly, after allowing the application for the waiver of pre-deposit of amounts involved, we take the appeal itself for disposal. 3. Heard both sides and perused the records. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit, even in absence of enabling provision that consider deemed export as physical export as in case of supply to SEZ, having been defined as export in terms of Section 2(m), of SEZ Act, 2005 read with Rule 30 of the SEZ Rules, 2006. 2. From the questions it can be seen that though two questions are framed, issue is common, viz. entitlement of the manufacturer to refund of Cenvat credit on inputs used in manufacture of goods cleared by DTA units to 100% export oriented unit. Case of the Revenue is that such refund is not available since Rule 5 of the Cenvat Credit Rules does not cover such a situation granting benefit of deemed export. It is Revenues case that only physical export would qualify for refund. We need not record the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the Apex Court. It is, however, more important to note that the decision of the Tribunal in the case of Ginni International Ltd. (supra) was also challenged before the Apex Court and the Apex Court vide decision reported in 2007 (215) E.L.T. A102 (S.C.) held while dismissing the Revenues appeal against the Tribunals order, 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. It is also important to note that the decision of the Tribunal in the case of Sanghi Textiles Ltd. v. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004. 4. Counsel for the Revenue, however, submitted that a Division Bench of the Madras High Court in the case reported in 2007 (211) E.L.T. 23 (Mad.) has taken a different view. We find that the decision of this Court being directly on the issue, we are bound by the said decision. Further we find that the Apex Court in the case of Virlon Textile Mills Ltd. v. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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