Custom, Excise & Service Tax Tribunal
Super Packs vs Commissioner Of Central Excise, ... on 30 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/675 to 679/12 [Arising out of Order-in- Appeal No. PIII/RS/20-24/2012 dated 30-1-12 passed by the Commissioner of Central Excise (Appeals-III), Pune] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
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?
=======================================================
Super Packs
:
Appellant
M/s Novel Packaging
VS
Commissioner of Central Excise, Pune-III
:
Respondent
Appearance
Shri. Ganesh K. S. Iyer, Advocate for the Appellants
Shri. N.N. Prabhudesai, Superintendent (A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 30/12/2016
Date of decision: 20/1/2017
ORDER NO.
In all these appeals the common issue involved is whether the appellant is entitle for the refund in respect of duty/service tax paid on input /input services used in the manufacture of goods supplied to 100% EOU. The adjudicating authority sanctioned the refund claim holding that supply made to 100% EOU is deemed export and following the various judgments it was held that refund under Rule 5 is admissible to the appellant. Ld. Commissioner(Appeals) in the appeal filed by the Revenue denied the refund claim on the ground that Rule 5 does not provide the refund in respect of supplies made to 100% EOU and followed the tribunals decision in case of Commissioner of Central Excise, Thane-I Vs. Tiger Steel Engg(I) Pvt Ltd[2010-TIOL-1256-CESTAT-MUM]. Being aggrieved by the impugned order, appellants are before me.
2. Shri. Ganesh K. S. Iyer, Ld. Counsel for the appellant submits that Ld. Commissioner(Appeals) disallowed the refund claim only on the ground that Tribunal decision in case of Tiger Steel Engg(I) pvt Ltd(supra) wherein it was held that clearances to 100% EOU does not entitle for refund under Rule 5 of Cenvat Credit Rules. He submits that very same issue has been considered in various judgments including the judgment of various high courts and it was held that export includes deemed export i.e. supplies made to 100% EOU therefore refund under Rule 5 is admissible. He placed reliance on following judgments:
(a) Western Cans P. Ltd Vs. Commissioner of C. Ex. Mumbai-i[2011(270) ELT 101(Tri. Mum)]
(b) Commissioner of Central excise and Customs Vs. NBM Industries [2013(29) S.T.R. 208(Guj)]
(c) E.I. Dupont India Pvt Ltd. Vs. Union of India[2014(305) ELT 282(Guj)]
(d) Commissioner Vs. Metflow Cast Pvt Ltd[2016(331) ELT 355(Guj)]
(e) Arkay Glenrock (p) Ltd Unit II Vs. Commr. Of C. ex. Madurai[2014(35) S.T.R. 953(Tri. Chennai)]
(f) Elcomponics Sales Pvt Ltd.Vs. Commissioner of Central Exicse, Noida[2012(279 ) ELT 280 (Tri. Del.)]
(g) Refron Valves Ltd Vs. Commissioner of Central Excise, Vadodara[2012(281) ELT 447(Tri. Ahmd)]
(h) Commissioner of C. Ex. Ahmedabad Vs. Rangdhara Polymers[2011(264) ELT 275(Tri. Ahmd.)]
(i) Manoj Handlooms Vs. Commissioner[2009(240) ELT 158(Tri. Chennai)]
(j) Sanghi Textiles Ltd Vs. Commissioner of Cus., C. Ex., Hyderabad[2006(206) ELT 854(Tri. Bang.)]
(k) Uniworth Textiles Ltd Vs. Commissioner of C. Ex. Raipur[2016(341) ELT 438(Tri. Del.)]
3. On the other hand, Shri. N.N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He has made detailed written submission. He submits that as per the Tribunal decision in case of Tiger Steel Engg(I) Pvt Ltd (supra) it was clearly held that clearances to 100% EOU is not at par of exports. The refund of Rule 5 applicable only in case the goods are exported into India therefore the Commissioner(Appeals) has rightly denied the refund.
4. I have carefully considered the submissions made by both sides.
5. I find that the issue involved lies in very narrow compass that whether clearances made to 100% EOU should be considered at par with exports of the goods out of country and consequently whether for such supplies, refund under Rule 5 is admissible. I find that adjudicating authority following the ratio of the various judgments, held that export includes the deemed export i.e. clearances made to 100% EOU accordingly refund was allowed. The Ld. Commissioner (Appeals) reversed the order of the adjudicating authority only on the basis of Tribunal decision in case of Tiger Steel Engg(I) Pvt Ltd(supra). I find that as per the Rule 5 of Cenvat Credit Rules, no exclusion was provided to deemed export i.e. supplies made to 100% EOU therefore bare term Export includes export of goods out of India as well as deemed export. This very issue has been considered in detailed by the Honble Gujarat High Court in case of E.I. Dupont India Pvt Ltd(supra) wherein it was held that deemed export ie. Supplies made to 100% EOU is at par with the physical export and all the benefit otherwise available to the export out of India shall be mutatis mutandis applicable to the clearances made to the 100% EOU. As regard the decision of this Tribunal in case of Tiger Steel Engg(I) Pvt Ltd(supra) I find that this decision has not considered the Honble Gujarat High Court decision in case of E.I. Dupont India Pvt Ltd(supra) therefore the decision in case of Tiger Steel Engg(I) Pvt Ltd(supra) cannot said to be a good law therefore same is distinguished. Following the retio of the Honble Gujarat High Court decision as well as other decision cited by the Ld. Counsel, I find that issue is no longer res integra, accordingly refund under Rule 5 is admissible to the clearances of goods made to 100% EOU. I therefore set aside the impugned order and allow the appeals filed by the appellant, with consequential relief if any, in accordance with law.
(Order pronounced in Court on___________________) Ramesh Nair Member (Judicial) sk 5 E/675 to 679/12