Custom, Excise & Service Tax Tribunal
C.C.E., Jaipur I vs Shri Ram Casting on 3 March, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision: 3.3.2016 Central Excise Appeal No.2800 of 2007 Arising out of the Order-in-appeal No.237 (GRM)CE/JPR-I/2007 dated 27.7.2006 passed by the Commissioner (Appeals I), Central Excise, Jaipur. For approval and signature: Honble Mr. S.K. Mohanty, Judicial Member Honble Mr. R.K. Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? C.C.E., Jaipur I Appellant Vs. Shri Ram Casting . Respondent
Appearance:
Present Shri Govind Dixit, A.R. for the Appellant/Revenue Present Ms. Priyanka Goel, Advocate for the respondent Coram: Honble Mr. S.K. Mohanty, Judicial Member Honble Mr. R.K. Singh, Technical Member Final Order No. 51199/2016 Per R.K. Singh:
Revenue is in appeal against the Order-in-Appeal dated 27.7.2007 which rejected its appeal and upheld the Order-in-Original dated 28.6.2006, in terms of which the Assistant Commissioner had sanctioned Cenvat Credit refund of Rs.3,18,017/- under Rule 5 of of the Cenvat Credit Rules, 2002 on the ground that respondent was unable to utilize the said credit on account of duty free clearance made by it to an EOU against CT-3.
2. Revenue has filed this appeal against the order of Commissioner (Appeals) contending that to be eligible for refund under the said Rule 5, the goods should be exported and since in this case, the respondent had supplied the goods to a 100% EOU, they cannot be held to be exported and hence the impugned cenvat credit refund was inadmissible. During the hearing, Revenue reiterated the same contention.
3. On the other hand, the respondent contended that the issue is no longer res integra having been settled against Revenue by the Honble Gujarat High Court in the case of C.C.E., Surat vs. Shilpa Copper Wire Industries 2011 (269) ELT 17 (Guj).
3. We have considered the contentions of both sides. We find that CESTAT in the case of Apotex Pharachem (I) Pvt. Ltd., Bangalore vs. C.C.E., Bangalore [Final Order No.A/21795 21797/2015 dated 7.7.2015, following the judgment of Gujarat High Court inC.C.E., Surat vs. Shilpa Copper Wire Industries(supra) held as under:
13. The findings recorded in the impugned order that physical export is not to be equated with deemed export, and thus the appellant is not entitled for refund of Cenvat Credit in terms of Rule 5 of the Rules, in my considered opinion, is not legal and proper, in view of the Judgment of Honble Gujarat High Court in the case of Shilpa Copper (supra). In response to the question framed in paragraph 1(a), as to whether , the clearances made by one 100% EOU to another 100% EOU which are deemed export are to be treated as physical export for the purpose of entitling refund of unutilized Cenvat credit, the Honble Court vide paragraph 16 have answered as follows:-
16.?In the above fact situation, we are of the view that no question of law much less any substantial question of law, arises out of the order of the Tribunal and even if it arises, the answer is very obvious and we, therefore, hold 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 Rule, 2004.
14. In view of the judgment of the Division Bench of Honble Gujarat High Court in the case of Shilpa Copper (supra), deciding the specific issue arising out of Rule 5 of the Rules, reliance placed by the ld. D.R. for Revenue on the judgment of the Single Bench of Hojble Madras High Court in the case of BAPL Industries (supra) will not have the binding precedence, because as per settled principles of laws, in case of two conflicting orders, one of a single judge and one by a Division Bench, the order issued by the Division Bench would prevail.
4. Thus as per the aforesaid judicial precedent, the issue stands settled in favour of the respondent. Therefore, we do not find any infirmity in the impugned order and reject the Revenues appeal.
(S.K. Mohanty) Judicial Member (R.K. Singh) Technical Member scd/ 3