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TMI Blog2016 (3) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... rely on the Hon'ble Gujarat High Court decision in the case of CCE Vs NBM Industries (2011 (9) TMI 360 - GUJARAT HIGH COURT ) wherein the Hon'ble High Court dismissed the Revenue appeal on this issue. Thus appellants are entitled for claiming refund under Rule 5 of CCR relying on Board's circular No.1001/8/2015-CX dt. 28.4.2015 held that supplies to SEZs are entitled to all benefits - Since the adjudicating authority has not examined the issue on merits, the impugned order is set aisde and matter is remanded to the adjudicating authority to process the refund claim on merits - Decided in favour of assessee by way of remand - Appeal No. E/40053/2014 - FINAL ORDER No.40482/2016 - Dated:- 17-3-2016 - Shri R. Periasami, Technical Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 971 (GOI) 4. On the other hand, Ld. AR reiterated the findings of the impugned order. He submits that as per the Larger Bench decision in the case of Sai Wardha Power Ltd. Vs CCE Nagpur - 2015-TIOL-2823-CESTAT-MUM-LB, the appellant being an EOU cannot claim rebate and the Tribunal has no power to grant rebate. 5. After hearing both sides, I find that the short issue involved in the appeal is eligibility of refund claim under Rule 5 of CCR in respect of inputs/inputs services which are used in the final products which were supplied to SEZs and EOUs. On perusal of the OIO dt. 7.1.2011, there is no dispute on the fact that appellants are a EOU who supplied the goods to SEZs and EOUs under bond following the procedures. There are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (215) E.L.T. A102 (S.C.) held while dismissing the Revenue s appeal against the Tribunal s 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. Commissioner of Customs Central Excise (supra) was also challenged by the Revenue before the Apex Court and the Apex Court vide order dated 16-8-2007 dismissed the Revenue s appeal. While dismissing the said appeal, Apex Court has referred to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. Commissioner of C. Ex., Mumbai, 2007 (211) E.L.T. 353 (S.C.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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