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TMI Blog2016 (3) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... was unable to utilise the CENVAT Credit lying in balance as there were no home clearances and all the clearances were made to unit in SEZ without payment of duty but under bond. In our considered view, the first appellate authority as well as the adjudicating authority were in error in rejecting the refund claims and confirmation of demands initiated by show-cause notices for erroneous refund sanction for more than one reason as there is no dispute as to the fact that the finished goods were cleared to an unit situated in SEZ which would amount to export as per the provisions of SEZ Act, more specifically Section 2(m) of the SEZ Act which states that any supply of goods or provisions of services from DTA to SEZ unit or SEZ developer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oneous which was confirmed as demand of duty along with interest and penalty was also imposed. In other two appeals the refund applications filed by the appellant were rejected by the adjudicating authority. Aggrieved by such orders, appellant preferred appeals before the first appellate authority. The first appellate authority also concurred with the views of the lower authority and upheld the order-in-original by rejecting the appeals vide impugned orders No. RBT/76/2010 dated 26.11.2010; RBT/84/2010 dated 30.11.2010 RBT/78/2010 dated 30.11.2010. 3. Learned Counsel submits that there is no dispute as to the fact that the appellant had cleared the goods to a unit situated at SEZ and these clearances to SEZ were on par with the exports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of BAPL Industries Ltd. vs. Union of India - 2007 (211) ELT 23. It is his further submission that the refund claim which was sanctioned earlier was erroneous hence the show-cause notice issued for recovery of such erroneous refund claim was correct and the penalties imposed were also correct. 5. We have considered the submissions made at length by both sides and perused the records. 6.1 The issue that falls for our consideration is whether the appellant herein is eligible for refund of the unutilized CENVAT Credit lying in balance as they had cleared the goods under CT-3 to a unit situated in SEZ or otherwise under Rule 5 of the Cenvat Credit Rules,2004, read with Notification No. 5/2006-CE(NT) dated 14.03.2006 as amended. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this appeal have to be considered as export . 6.5 Secondly, we find that an identical issue fell for consideration of the Hon'ble High Court in the case of NBM Industries (supra). Respectfully, we reproduce the entire judgement: In this appeal, appellants are challenging the rejection of refund claim of Cenvat credit which was taken on the inputs used in the finished goods supplied to 100% EOUs. Refund claim made by the appellants in respect of Cenvat credit on the inputs used in the goods manufactured and cleared to Special Economic Zone, has been allowed but in respect of clearances to 100% EOU, the same has been denied on the ground that it was only a deemed export and not a real export. 2. Ld. Advocate on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y pay duty in respect of DTA sales, credit is admissible to the recipients, I agree, that the Cenvat credit is to be allowed. Accordingly, the appeal is allowed with consequential relief to the appellants. 6.6 It can be seen from the above reproduced judgemnet and order of the Hon'ble High Court of Gujarat, the issue is no more res integra and settled in favour of the appellant. 6.7 As regards the reliance placed by the learned D.R. on the judgment of the Hon'ble High Court of Madras in the case of BAPL Industries (supra) we find that the judgment has been distinguished by this Tribunal in the case of Refron Valves Ltd. - 2012 (281) ELT 447 (Tri-Ahm.). On perusal of the said judgement we find that in that case the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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