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TMI Blog2019 (8) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (1A) in Explanation 1 of Rule 5 of CENVAT Credit Rules effective from 1.3.2015 whereby export of goods means only those goods which are to be taken out of India to a place outside India which means that there has to be a physical export and for deemed export , cash refund is not permissible. Applicability of provisions of Section 142 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The findings of the original authority that the amount of refund claim would lapse under Section 142 of Central Goods and Service Tax Act, 2017 is not tenable in law, since there was no dispute about the fact that at the time of filing of refund claim, the appellant had debited the whole amount in their CENVAT account as required by the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CENVAT credit in terms of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.27/2012-CE dated 18.6.2012. The Original Authority held that the appellants were entitled to cash refund only in respect of goods physically exported and in respect of goods cleared to other EOU termed as Deemed Exports in view of the definition of export goods inserted in Rule 5 of CENVAT Credit, 2004 with effect from 1.3.2015 to mean any goods which are to be taken out of India to a place outside India. The details of the refund claims filed by the appellants are given herein below: Period OIO No./Date Amount of refund applied for Amount of refund sanctioned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant submitted that the impugned order rejecting the claim of cash refund is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that there is no dispute about the fact that the appellants are 100% EOU and holders of a valid Letter of Permission issued by Development Commissioner, Cochin, Special Economic Zone and a Customs Bonded Warehouse License and In-bond Manufacture Sanction Order issued by the Central Excise /Customs Authorities in terms of Section 58 and Section 65 of the Customs Act, 1962. He further submitted that the conclusion arrived by the Assistant Commissioner is that appellant had not physically exported their goods but cleared the same to anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other EOU will be counted for fulfillment of positive Net Foreign Exchange (NFE). In support of his submission, the appellant relied upon the decision rendered in the case of CCE vs. Shilpa Copper Wire Industries: 2011 (269) ELT 17. He further submitted that the decision of the Tribunal in the case of CCE vs. Trimurti Plast Containers Pvt. Ltd.: 2018 (364) ELT 432 (Tri.-Mum.) is not applicable in the present case. The last submission of the learned counsel was that the original authority has held that the amount shall be allowed to lapse as per Section 142 of Central Goods and Service Tax Act, 2017 is not sustainable in law because there is no dispute about the fact that at the time of filing the refund claim, the appellant had debi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection of refund. 5.1 In support of their submission, the learned AR relied upon the following decisions: CCE, Pune-III vs. Trimurti Plast Containers Pvt. Ltd.: 2018 (364) ELT 432 (Tri.-Mumbai) Jimtex Pvt. Ltd. vs. CCE, Thane-I : 2018 (9) GSTL 290 (Tri.-Mum.) 5.2 He further submitted that the decision of the Mumbai Tribunal in the case of Trimurti Plast Containers Pvt. Ltd. (supra) is on identical facts wherein the Tribunal has held that the assessee is not entitled to cash refund when there is no physical export. 6. After considering the submissions of both the parties and perusal of the material on record, I find that, in the present case, appellant is a 100% EOU who has admittedly supplied the goods to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. As regard the reliance of the Ld. Counsel on Board Circular dated 28-4-2015 on perusal of the same, I find that the said circular is for clearance to SEZ as regard the SEZ there is specific provision in SEZ Act itself that supplies made to SEZ is exports therefore this circular is not applicable for 100% EOU. As regard the judgments, I find that all the judgments pertain to period prior to 1-3-2015, therefore same are not applicable in the present case particularly when definition of export goods is amended. As per my above discussions, impugned order is not sustainable, same is set aside. Revenue s appeal is allowed. CO stands disposed of. 6.1 Further, I find that as far as rejection of cash refund by both the authorities is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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