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TMI Blog2017 (1) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... E/21614/2016-SM - Final Order No. 20097-20101 / 2017 - Dated:- 18-1-2017 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Dr. Ezhilmathi, AR For the appellant Mr. S. Sivakumar, Advocate For the respondent JUDGEMENT Per : S.S GARG The department has filed these 5 appeals against the common impugned Order-in-Appeal No.138-142/2016-CE dated 14.9.2016 whereby the learned Commissioner (A) has allowed the refund of CENVT credit relating to deemed export. 2. Briefly the facts of the case are that the respondent-assessee is a 100% EOU issued with private bonded warehouse license and in-bond manufacturing sanction order for manufacture and export of fine organic compounds. The respondent-assessee has filed 5 refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard both the parties and perused the records. 4. The learned AR submitted that the impugned order allowing the refund is not sustainable in law. She further submitted that Rule 5 of CCR, 2004 which governs the sanction of refund does not provide for refund of accumulated credit of inputs in case of deemed exports. Further the learned AR submitted that the decision of the CESTAT in the case of Shilpa Copper Wires Industries is not applicable in the present case. She further submitted that the provisions of Customs and Excise law are dependent upon the statutory definition of exports and it is clear that Rule 5 provisions related to refund of unutilized CENVAT credit are applicable to only physical exports and not to deemed exports. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o this issue the assessee have argued that clearances on iur basis are at par with physical exports as the procedure followed for clearances of goods on IUT basis and for physical exports are identical. It is seen that the Original Authority has riot taken into account deemed export clearances while calculating the admissible amount of refund of unutilized credit under Rule 5 of Cenvat Credit Rules. The issue of deemed exports and physical exports has been considered by the Hon'ble High Court of' Gujarat in the case of NBM Industries- 2012 (276) ELT 9 (Guj) which relying on decision of the Supreme Court in the case of Virlon Textile Mills Ltd vs. CCE Mumbai reported in 2007 (211) ELT 353 (SC),has held that refund could not be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, arises of the order of the Tribunal and even if it arises, the answer is very obvious and we, therefore, hold that the Tribunal is justified and ha., not committed any substantial error of law in dismissing the appeal o, 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. 14. In view of the judgment of the Division Bench of Hon'ble Gujarat High Court in the case of Sh.11pa. Copper (supra), deciding the specific issue arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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