M/S. Goa Invescast Ltd vs Commissioner Of Customs & Central ...

[Arising out of Order-in- Appeal No. CEX/GOA/MP/82/2008-09 dtd. 26/2/2009 passed by the Commissioner(Appeals), Central Excise & Customs, Goa]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. Goa Invescast Ltd. : Appellants

VS

Commissioner of Customs & Central Excise, Goa : Respondent

Appearance

Shri. C.S. Birasdar, Advocate for the Appellants Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 27/5/2015 Date of decision: 27/5/2015

ORDER NO. Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. CEX/GOA/MP/82/2008-09 dtd. 26/2/2009 passed by the Commissioner(Appeals), Central Excise & Customs, Goa, wherein Ld. Commissioner (Appeals) upheld the order-in-original No. R/234-237/08-09-CX-DIV-I dated 29/8/2008.

2. The issue involved in the present case is whether the refund under Rule 5 and Notification issued thereunder is admissible in case of the deemed export i.e. supplies made to 100% EOU by the appellant from their DTA unit.

3. Shri. C.S. Birasdar, Ld. Counsel for the appellant submits that in Rule 5 neither any exclusion in respect of deemed export nor any bar for refund of accumulated credit is provided. Rule 5 applicable to export made under bond. In the present case, the goods were cleared to 100% EOU and the transactions is of deemed export therefore Rule 5 covers not only physical export out of India but also deemed export i.e. supply made to 100% EOU. He placed reliance on following judgments:

(a) Commissioner of Central Excise and Customs Vs, NBM Industries[2013(29) S.T.R. 208(Guj.)].

(b) Commr. of Central Excise Vs. Shilpa Copper wire Industries[2011(269) E.L.T. 17(Guj)].

(c) Commissioner of C. Ex. And Customs Vs. Anita Synthetics Pvt. Ltd. [2014(306) ELT 133(Guj)]

(d) Refron Valves Ltd. Vs. Commissioner of Central Excise, Vadodara[2012(281) E.L.T 447(Tri. Ahmd.)]

He submits that issue involved in the present case is squarely covered by the aforesaid judgments accordingly appellant is entitled for refund of accumulated Cenvat Credit in terms of Rule 5 and notification issued thereunder.

4. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as per the notification it is mandatory requirement to submit documents such as shipping bills or bill of export to the effect that goods have infact been exported, certificate from the bank certifying realization of export proceeds alongwith claim. With this statutory requirement provided under the notification issued under Rule 5, it implies that goods should be physically exported and therefore in case of deemed export i.e. supply made to EOU within the country is not entitled for refund of accumulated Cenvat credit. It is his submission that refund under Rule 5 is applicable only if goods is exported out of India and not in respect of deemed export made to 100% EOU. In support of his submission, he placed reliance on following judgments:

(a) BAPL Industries Ltd. Vs. Union of India[2007(211) E.L.T. 23 (Mad.)]

(b) Commissioner of Central Excise, Pondicherry Vs. M/s. Bansal Metallic Oxides[2012-TIOL-477-CESTAT-MAD].

He also relied upon Honble Supreme Court judgment in the case of Virlon Textile Mills Ltd. Vs. Commissioner of C. Ex. Mumbai[2007(211)E.L.T.353(S.C.)]. He submits that in the Notification issued under Rule 5 requirement of specific documents for processing claim clearly shows that this refund is applicable only in a case of physical export and not for deemed export. Honble Supreme Court in the case of Commissioner of C. Ex., New Delhi Vs. Hari Chand Shri Gopal[2010(260)ELT 3(SC)] held that condition of the notification must be complied with for claming the benefit of notification. In the present case, since the required documents has prescribed under the notification was neither available nor submitted therefore refund claim is not admissible in view of the Apex Court judgment.

5. I have carefully considered the submissions made by both the sides and perused the record.

6. The fact of the case is not under dispute that appellant have supplied the goods under deemed export to 100% EOU and claimed cash refund of accumulated Cenvat Credit under Rule 5. The issue to be decided is whether the deemed export should be considered as export 5 and refund under Rule 5 is admissible. I have carefully read Rule 5 and notification No 5/2006-C.E.(N.T.) dated 14/3/2006 issued thereunder and found that no exclusion in respect of deemed export made to 100% EOU has been provided either in the Rule 5 or notification issued therein. The very same issue has been dealt in various judgments cited by the Ld. Counsel. In the case of NBM Industries(supra) the Honble Gujarat High Court following their own judgment in case of Shilpa Copper wire Industries(supra) held that deemed export can be equated with physical export and accordingly the refund under Rule 5 cannot be denied on the ground that supply under deemed export and not under physical export. In the case of Shilpa Copper wire Industries(supra) the issue involved was refund under Rule 5 in a case where goods were supplied from one 100% EOU to another 100% EOU.

The Honble Court held that the Tribunal is justified and has not committed any substantial error of law in dismissing the appeal of 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 Rules, 2004. In another judgment of Honble Gujarat High Court in case of the Anita Synthetics Pvt. Ltd held that clearances made by one 100% EOU to another 100% EOU, such deemed exports are to be treated as physical exports for the purpose of being entitled to refund of unutilized Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004. The Coordinate Bench of this Tribunal in case of Refron Valves Ltd following the Honble High Court decision in the case of Shilpa Copper wire Industries(supra) and distinguished the judgment of BAPL Industries Ltd(supra) held that clearances made to 100% EOU to be treated as physical export and not deemed export for the purpose of granting refund of unutilized Cenvat Credit.

In view of the above judgments, the issue involved in the present case is no more res-integra. As regard the reliance placed by the Ld. A.R. in the case laws of BAPL Industries Ltd and Virlon Textile Mills Ltd.(Supra). I observed that both the judgments have been considered by Honble Gujarat High Court as well as coordinate bench of this Tribunal and in BAPL Industries Ltd has distinguished in Refron Valves Ltd case. And the case of Virlon Textile Mills Ltd.(Supra) of the Honble Supreme Court the same was considered by Honble High Court of Gujarat and thereafter held that refund under Rule 5 is admissible on the clearance made to 100% EOU. In view of the above settled legal position which is binding on this Tribunal, I am of the view that the appellant is entitled for cash refund of accumulated Cenvat amount in terms of Rule 5 of Cenvat Credit Rules, 2004. Accordingly, the impugned order is not sustainable and therefore the same is set aside. The appeal of the appellant is allowed with consequential relief, if any, in accordance with law.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial) sk

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