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TMI Blog2007 (11) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... filed against the following Orders-in-Appeal. The details of the appeals are given below:- SI. No. OIA No. Date Passed by Refund amount involved 1. 21 /2007-CUS(B) Dated: 28-2-2007 CC(Appeals), Bangalore Rs. 8,97,602/- 2. 22/2007-CUS(B) Dated 28-2-2007 CC(Appeals), Bangalore Rs. 5,36,684/- 2. The issue involved in both these appeals is one and the same. Therefore, I am taking up both the matters together for issuing a common order. 3. Shri B.N. Gururaj, the learned Advocate, appeared on behalf of the appellants and Smt. Sudha Koka, the learned SDR, for the Revenue. 4. I heard both sides. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though no credit can be taken on goods, which are exempted, there is a vast difference between the goods, which are exempted and the goods, which are exported. He submitted that export goods are not exempted goods. He said that there is clearly a distinction between exempted goods and exported goods. The exempted goods are exempted by virtue of Notification. He relied on the decision of the Tribunal in the case of Alpha Drug India Ltd. v . CCE, Chandigarh - 2000 (118) E.L.T. 783 (T) wherein the Tribunal has held that erstwhile Rule 13 of the Central Excise Rules 1944, allows exports without payment of duty, which is not the same as goods chargeable to NIL duty or exempt goods. Hence, it was held that the provisions of erstwhile Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that even goods exported under Customs bond are excluded from the scope of Rule 6. Further, he relied on the following case-laws :- SI. No. Citation Summary of Ratio 1. Gaurav Distributors (P) Ltd. v. CC, New Delhi- 2004 (170) E.L.T. 513 (S.C.) 'Export under bond' includes both customs and excise bonds (U/S 20 of CA, 1962.) 2. Jobelle v. CCE, Mumbai-I - 2006 (203) E.L.T. 627 (Tri. - Mum.) Exempted goods under LUT, but claim allowed 3. Sutlej Industries Ltd. v. CCE, Vapi - 2006(205) E.L.T. 942 (Tri. -Mumbai) Refund of AED (T TA) allowed even when that duty was exempt on the exported goods. 4. Transformer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of Finance (Department of Revenue) No. 108/95-Central Excise, dated the 28th August, 1995, number G.S R.602(E) dated the 28th August, 1995; or (v) cleared for export under bond in terms of the provisions of the Central Excise Rules, 2002; or (vi) gold or silver falling within Chapter 71 of the said First Schedule, arising in the course of manufacture of copper or zinc by smelting; or (vii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional, duty leviable under section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of Notification No. 6/2002-Central Excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, they are rightly entitled for the refund. The Tribunal, in the case of Sterlite Optical Technologies case (cited supra), has held that in the case of 100% EOU, prima facie there is no bar on the avilment of Cenvat credit. Further, the Tribunal, in the case of Jobelle v. CCE (cited supra), has held that the Letter of Undertaking accepted in lieu of bond for export even though finished goods were exempted, refund of Cenvat credit on inputs and pack in materials are admissible in terms of Rule 5 of the Cenvat Credit Rules. In view of this clear position, I hold that the 100% EOU is entitled to take Cenvat credit on the duty on the inputs procured indigenously and when they are not in a position to utilize the same, they a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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