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TMI Blog2019 (3) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... aim is rendered unsustainable. The upholding of the rejection of this very claim of refund on a different ground by the first appellate authority is contrary to the principles of natural justice. The first appellate authority has approved of the order of rejection of the claim for refund for the subsequent period on the ground of availment of the privilege of export under claim for rebate during the same period while claiming the refund on deemed exports effected to eligible entities - We find a logical inconsistency in this finding; export under claim for rebate, as per rule 18 of Central Excise Rules, 2002, is restricted to, and applicable only for, physical exports. There is no scope for invoking the privilege of rule 18 of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority by relying upon decisions of the Tribunal, various High Courts and the Hon'ble Supreme Court. While the appeal of Revenue against this order of the first appellate authority was yet pending before the Tribunal, the consequential refund claimed by the appellant was rejected by the original authority on the ground of disbarment owing to export under claim for rebate which was, therefore, in dissonance with the second proviso to rule 5 of CENVAT Credit Rules, 2004. Though reliance was placed upon the decision of the Tribunal in Reva Electric Car Co P Ltd v. Commissioner of Central Excise, Customs & Service Tax, Bangalore-I [2014 (309) ELT 551 (Tri-Bang)], the concurrent availment of export and the claim for rebate and a refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly directed the grant of refund and, notwithstanding the pendency of appeal before the Tribunal, it was not open to the refund sanctioning authority to raise a fresh ground. In any case, we are also disposing off that pending appeal by this order. 4. The Hon'ble High Court of Karnataka has, while disposing of the appeal of Revenue against the order of the Tribunal in Commissioner of Customs & Service Tax, Bangalore-II v. Nash Industries [2017 (351) ELT 259 (Kar)], held that "5. We may also record that similar question came to be considered by the High Court of Gujarat in the case of M/s. Shilpa Copper Wire Industries reported in [2011 (269) E.L.T. 77 (Guj.)] and after considering the similar question at paragraphs 14, 15 and 16 it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt vide order dated 16-8-2007 dismissed the Revenue's appeal. While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held 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. 15. In view of the above settled legal position and considering the fact that the issue is settled by the Apex Court by those very judgments on which the Tribunal has placed reliance while deciding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the appellant-assessee is not sustainable in law. Accordingly, the refund for the earlier period must needs be sanctioned to the appellant-assessee. 5. The first appellate authority has approved of the order of rejection of the claim for refund for the subsequent period on the ground of availment of the privilege of export under claim for rebate during the same period while claiming the refund on deemed exports effected to eligible entities. We find a logical inconsistency in this finding; export under claim for rebate, as per rule 18 of Central Excise Rules, 2002, is restricted to, and applicable only for, physical exports. There is no scope for invoking the privilege of rule 18 of Central Excise Rules, 2002 for clearances effected t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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