9911796707
TMI Blog2024 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... er in charge of the factory - HELD THAT:- The SCN has pointed to certain procedural defects and the fact that the appellant appears to have sold the goods domestically to the export warehouse from where the ultimate exports were made. Thus as far as the appellant is concerned the clearance remained domestic clearance only, which has not been specified as the clearances due to which the unutilised credit of the Cenvat account can be refunded under the provisions of rule 5 of CCR 2004. The OIO has further found that the appellant herein has not engaged in any manufacturing activity to claim refund under Rule 5 of CCR 2004. The impugned order has also cited the Tribunal decision in Commissioner Vs Tiger Steel Engineering [ 2010 (7) TMI 324 - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mechanism provided for as per Boards Circular. Moreso when Rule 5 of CCR, 2004, does not differentiate between deemed exports and physical exports and grants the benefit to any products / goods cleared for export. The impugned order is set aside and the appeals are allowed. - Hon ble Shri M. Ajit Kumar , Member ( Technical ) Ms. Natasha Jhaver, Chartered Accountant for the Appellant Ms. O.M. Reena, Authorized Representative for the Respondent ORDER The above appeals arise out of a common Order in Appeal No. 25 to 28/2015 dated 16.1.2015 passed by the Commissioner of Central Excise (Appeals II), Chennai (impugned order). 2. Brief facts of the case are that the appellant is engaged in the manufacture of Automobile AU Bearings falling unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the appellant submitted the details regarding the appeal as tabulated below; S. No. Appeal No. Period Refund Amount 1. E/41737/2015 Oct. 2010 to Dec. 2010 34,00,000/- 2. E/41738/2015 March 2010 4,53,762/- 3. E/42603/2015 April 2010 to June 2010 28,00,000/- 4. E/42549/2015 July 2010 to Sep. 2010 38,00,000/- She stated that the issue involved in all these appeals is as to whether the appellant is entitled to refund of unutilized CENVAT Credit, as per Rule 5 of the CENVAT Credit Rules, 2004 (CCR 2004) read with Notification 5/2006 C.E. NT Dt. 14.03.2006, issued thereunder, in respect of the goods, viz., automobile bearings falling under Central Excise Tariff heading 84821011, cleared by them to M/s Nissan Motors Limited's wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that clearance by one 100% EOU to another 100% EOU should be treated as export and refund under Rule 5 is eligible. The ratio of this decision is applicable in the present case also. She further stated that the issue that the subject goods have been not been subjected to manufacture was not at all raised in the show cause notice and the only allegation in the show cause notice was that refund is eligible only for physical exports. Hence, the denial of the refund on the ground that the activities undertaken by the appellant does not amount to manufacture is clearly beyond the scope of the show cause notice and hence not sustainable. Further their eligibility to avail CENVAT credit has not at all been questioned and no proceedings h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments cited. I find that the SCN has pointed to certain procedural defects and the fact that the appellant appears to have sold the goods domestically to the export warehouse from where the ultimate exports were made. Thus as far as the appellant is concerned the clearance remained domestic clearance only, which has not been specified as the clearances due to which the unutilised credit of the Cenvat account can be refunded under the provisions of rule 5 of CCR 2004. The OIO has further found that the appellant herein has not engaged in any manufacturing activity to claim refund under Rule 5 of CCR 2004. 5. The Commissioner Appeals in the impugned order has examined in the detail the issue regarding the appellant not having engaged in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn used the goods as raw materials and the resultant final products were exported or cleared to DTA. In this case the fact that the goods are subsequently physically exported by the export warehouse under ARE-1 procedure as laid down under rule 20 of Central Excise Rules read with notification No.46/2001 - Central Excise (N.T.) dated 26/06/2001 and is not in dispute. 7. In its judgment in K.P. Verghese v. Income Tax Officer, Emakulam and Another, [(1981) 4 SCC 173], the Hon ble Apex Court held that for the purpose of interpretation of a taxing statute, the fiscal philosophy, a feel of which is necessary to gather the intent and effect of its different clauses, should be applied. I find that in the case of a beneficial provision for the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
