Custom, Excise & Service Tax Tribunal
M/S. Mahak Commercial Pvt. Ltd vs Commissioner Of Central Excise And ... on 21 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/21405/2015-SM [Arising out of Order-in-Appeal No. MLR-EXCUS-000-DIVI-AC-APP-HAB-021-2015 dated 23/03/2015 passed by Commissioner of Central Excise (Appeals), Mysore. ] M/s. Mahak Commercial Pvt. Ltd Plot No. 291A,industrial Area, Baikampady MANGALORE - 575011 KARNATAKA Appellant(s) Versus Commissioner of Central Excise and Service Tax Mangalore 7TH FLOOR, TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE 575 003. KARNATAKA Respondent(s)
Appearance:
Shri G. Shivadass, Advocate LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 21/12/2016 Date of Decision: 21/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21440 / 2016 Per : S.S GARG The present appeal is directed against the impugned order dated 23.3.2015 passed by the Commissioner of Central Excise (A) whereby he rejected the appeal filed against the Order-in-Original.
2. Briefly the facts of the case are that the appellant is engaged in the manufacture of processed coke fines falling under Chapter 27 of Central Excise Tariff Act (CETA), 1985. The appellant procured the duty paid input viz., MCD coke from their suppliers. The MCD coke is processed in their plant/unit and the processed coke fines are supplied to M/s. Kudremukh Iron Ore Co. Ltd., Mangalore which is a 100% EOU. The excisable goods supplied to EOU is without payment of duty under the cover of ARE-3 against CT-3s issued in terms of Notification No.22/2003 dated 31.3.2003. The appellants have availed CENVAT credit on the inputs procured and the services received by them. Thereafter the appellant filed a refund claim for Rs.9,50,657/- under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.27/2012 dated 18.6.2012. Thereafter a show-cause notice was issued proposing to reject the refund claim under Rule 5 of CCR, 2004. The Assistant Commissioner vide Order-in-Original dated 2.5.2014 rejected the refund claim by holding that the supply of goods to 100% EOU cannot be treated as export for the purpose of refund of credit in terms of provisions of Rule 5 of CCR, 2004 as it is not a case of physical export of goods out of India. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) who also rejected the appeal of the appellant.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the issue of refund of unutilized CENVAT credit under Rule 5 of CCR, 2004 in respect of clearances of goods to 100% EOU is no more res integra and has been settled in favour of the assessee by following decisions:
i. CCE & Cus. Vs. NBM Industries: 2012 (276) ELT 9 (Guj.) ii. E.I. Dupont India Pvt. Ltd. vs. UOI: 2014 (305) ELT 282 (Guj.) iii. CCE vs. Shilpa Copper Wire Industries: 2011 (269) ELT 17 (Guj.) iv. Commissioner vs. Metflow Cast Pvt. Ltd.: 2016 (331) ELT 355 (Guj.) v. Refron Valves Ltd. vs. CCE, Vadodara: 2012 (281) ELT 447 (Tri.-Ahmd.) vi. Elcomponics Sales Pvt. Ltd. vs. CCE: 2012 (279) ELT 280 (T) 4.1 He further submitted that it is settled law that deemed export is equivalent to physical export and since deemed export is also export for the purpose of Central Excise Law. In support of his submission, he relied upon the following authorities:
i. Western Cans Pvt. Ltd. vs. CCE: 2011 (270) ELT 101 (Tri.-Mumbai) ii. CCE, Ahmedabad vs. Rangdhara Polymers: 2011 (264) ELT 275 iii. Cauvery Stones Impex Pvt. Ltd. vs. CCE: 2010 (257) ELT 151 (Tri.-Chennai) iv. Sanghi Textiles Ltd. vs. CCE: 2016 (206) ELT 854 (Tri.-Bang.)
5. Following the ratios of the decisions cited supra, I am of the opinion that the issue is squarely covered in favour of the appellant. Therefore, I allow the appeal of the appellant with consequential relief, if any, by setting aside the impugned order.
(Operative portion of the Order was pronounced in Open Court on 21/12/2016.) S.S GARG JUDICIAL MEMBER rv 4