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TMI Blog2015 (11) TMI 1553X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. Therefore, the impugned order denying the benefit of refund to the appellants is not sustainable. - Decided in favour of appellant - Excise Appeal No. E/51707 & 51708/2015-EX [SM] - Order No. 54006-54007/2015 - Dated:- 12-11-2015 - Mr. S. K. Mohanty, Member (Judicial) For the Appellant : Mrs. Sukriti Das, Advocate For the Respondent : Mr. M.R. Sharma, D.R. ORDER Per S. K. Mohanty The brief facts of the case are that the appellants are engaged in the manufacture of Hydel Gates and parts thereof falling u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate appearing for the appellants submits that the Foreign Trade Policy recognized supply of goods under the International Competitive Bidding as deemed export, for which there is no scope for payment of any excise duty in terms of the Notification dated 01.03.2006. Thus, according to the ld. Advocate, refund of unutilized cenvat credit on account of non-payment of duty on the finished goods should be available to the appellant in terms of Rule 5 of the Cenvat Credit Rules, 2004. To support her above stand, the ld. Advocate has relied on the judgment of Hon ble Gujarat High Court in the case of C.C.E. vs. NBM Industries reported in 2012 (276) ELT 9 (Guj.) and also the decision of this Tribunal in the case of Apotex Pharmachem India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. (supra), wherein this Tribunal vide para 13 has held as follows:- 13. The findings recorded in the impugned order that physical export is not to be equated with deemed export, and thus, the appellant is not entitled for refund of Cenvat credit in terms of Rule 5 of the Rules, in my considered opinion, is not legal and proper, in view of the judgment of Hon'ble Gujarat High Court in the case of Shilpa Copper (supra). In response to the question framed in paragraph 1(a), as to whether, the clearances made by one 100% EOU to another 100% EOU which are deemed export are to be treated as physical export for the purpose of entitling refund of unutilized Cenvat credit, the Hon'ble Court vide paragraph 16 have answered as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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