2018 (2) TMI 1769

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..... n this appeal - appeal dismissed - decided against appellant.
K.S. Jhaveri and Vijay Kumar Vyas, JJ. Shri Sandeep Pathak, for the Appellant. Shri P.K. Kasliwal with Priyesh Kasliwal, for the Respondent. ORDER By way of this appeal, the department has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the Department. Counsel for the appellant has framed the following substantial question of law :- "(i) Whether the Ld. CESTAT was correct in allowing the refund of Cenvat credit of Central Excise duty paid in respect of raw material procured from DTA Units under Rule 5 of the CENVAT Credit Rules, 2004 to the assessee and thereby misinterpreting the said provision?" 2. Counsel f .....

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..... Rule 5 of the Cenvat Credit Rules, 2004, but the same was denied by the Commissioner. However, the Commissioner in appeal vide order dated 16-9-2016 allowed the appeal filed by the respondent to allow the refund under Rule 5 of the Cenvat Credit Rules. Being aggrieved, department has filed the present appeal." 3. Counsel for the appellant has taken us to findings of the AO which reads as under :- "19. I find that reliance of DGFT Circular No. 16(RE- 2012/2009-17, dated 15-3-2013) placed in SCN is in reference of availment of exemption of Central Excise duty i.e. Terminal Excise Duty, DGFT has denied the refund of above duty for the reason that supply of goods to EOU by DTA unit are ab initio exempted from payment of excise duti .....

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..... that it is the settled law that the provisions of Section i.e. Act prevails over the Circulars and thus, provisions of Section 5A(1A) of Central Excise Act, 1944 applicable in this case and prevails over Circular No. 799/32/2004-CX., dated 23-9-2004. 4. However, the appellate authority while considering the matter has observed as under :- "6.1 I find that in this case it is not in dispute that the appellant are engaged in manufacture and export of goods. The only issues which require decision in the case is whether 100% Export Oriented Unit is entitled to take Cenvat credit of duty paid on inputs procured from a DTA unit and whether the 100% EOU is entitled for refund under Rule 5 of the Cenvat Credit Rules, 2004 of the unutilis .....

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