Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case Laws/2012-13/1219

Whether the “Deemed export” or supply to 100% EOU can be treated as export under bond?
Case:- TRICOLITE ELECTRICAL INDUSTRIES LTD VS COMMR. OF C.EX., DELHI-III, GURGAON
 
Citation: - 2012 (282) E.L.T. 468 (Tri.-Del.)
Issue:-  Whether the “Deemed export” or supply to 100% EOU can be treated as export under bond?
 
Brief fact: - The Appellant manufacture custom built switchgear and panels chargeable to Central Excise duty under sub-headings 8537 10 00, 8537 20 00 of the Central Excise Tariff. They avail Cenvat credit of Central Excise duty paid on inputs and capital goods and of service tax paid on input services under the provisions of Cenvat Credit Rules, 2004. The period of dispute in this case is 2008-2009. The appellant in addition to domestic sales which are very small, also supplied goods to SF7s, 100% EOUs and also Delhi Metro Rail Corporation (DMRC) by availing exemption under Notification No. 6/2006-CE., dated 1-3-2006 which are treated as deemed exports. The appellants in terms of sub-rule (6) of Rule 6 of the Cenvat Credit Rules, 2004 were eligible to avail Cenvat credit in respect of inputs or input services used in or in relation to manufacture of the finished products supplied to 100% EOUs, SEZs and DMRC by availing Notification No. 6/2006-C.E. Since they have very few domestic clearances on payment of duty, the accumulated Cenvat credit could not be utilised by them on clearances to home market. The appellant, therefore, applied for cash refund of the accumulated Cenvat credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 under this Rule.
 
Their claim for cash refund under Rule 5 of Cenvat Credit Rules was decided by the Jurisdictional Assistant Commissioner vide order-in-original dated 10-3-2010 by which while the refund of Rs. 21,02,115/- in respect of supplies to SEZ was allowed, the refund of Rs. 21,76,021/- in respect of supplies to other 100% EOUs and DMRC was disallowed on the ground that these supplies, though deemed exports, are not covered by Rule 5 of the Cenvat Credit Rules.
 
On appeal to Commissioner (Appeals), the appeal was dismissed vide order-in-appeal dated 8-4-2011.  Against this order of the Commissioner (Appeals), this appeal has been filed.
 
Appellant Contention: - The Appellant, pleaded that cash refund is admissible in respect of supplies to 100% EOUs and also in respect of supplies to DMRC by availing Notification No. 6/2006- C.E., as these supplies are deemed exports, that in this regard he relies upon the judgment of the Tribunal in the case of C.C.E., Thane-I v. Tiger Steel Engineering (I) Put. Ltd. reported in 2010 (259) E.L.T. 375 (Tn.- Mumbai) and Therefore, the impugned order is not correct.
 
 
Respondent contention: -The Respondent defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that the Tribunal's order in the case of CCE, Thane-I v. Tiger Steel Engineering (I) Pvt. Ltd. (supra) cited by the appellant is in respect of clearances by a DTA unit to a SEZ, which in view of the provisions of Section 2(m) of SEZ Act, 2005 have to be treated as exports, that for this reason only, the appellant have already been allowed cash refund of accumulated Cenvat credit in respect of supplies to SEZs, that in respect of supplies to other 100% EOUs,  the appellant are not eligible for cash refund of accumulated Cenvat credit, that there is no evidence that EOUs have used those inputs in the manufacture of finished products which were exported out of India under bond, that so far as supplies to DMRC by availing full duty exemption under Notification No. 6/2006C.E. are concerned, though the same are treated as deemed exports in terms of provisions of the EXIM policy, the provisions of Rule 5 of the Cenvat Credit Rules, 2004 are not applicable to the same, as these provisions are applicable only in respect of  those cases where the finished products made out of cenvated inputs/inputs services have been cleared for exports under bond or letter of undertaking or have been used in the manufacture of intermediate product cleared for export and the supplies to DMRC do not fall in this category, that the supplies to DMRC by availing Notification No. 6/2006-C.E., though treated as deemed exports under the EXIM policy, are not exports and cannot be treated as export under bond for the purpose of Rule 5 of the Cenvat Credit Rules, that cash refund of accumulated Cenvat credit in respect of supplies to 100% EOUs and DIVIRC by availing Notification No. 6/2006-C.E. had been correctly denied and, as such, there is no infirmity in the impugned order.
 
Reasoning of judgement :- Rule 5 of the Cenvat Credit Rules provides that where any input or input services have been used in the manufacture of final product which is cleared for export under bond or letter of undertaking, or as the case may be, is used in the manufacture of intermediate product cleared for export, or used for output service which is exported, the Cenvat credit in respect of the input or input service so used shall be allowed to be utilised by the manufacturer or provider of output service towards payment of duty of excise on any final product cleared for home consumption or for export on payment of duty or for payment of service tax on output service and where for any reason, such adjustment is not possible, the manufacturer or the provider of outward service shall be allowed the refund of such amount subject to the safeguards, conditions and limitations as specified by the Government by Notification. This cash refund of accumulated Cenvat credit is subject to condition that the manufacturer/provider of output service does not avail the input duty drawback or input duty rebate. From perusal of this Rule, it is clear that this Rule is applicable only in respect of the use of Cenvat credit availed inputs or input services for manufacture of the goods which are cleared for export under bond/letter of undertaking or are used in the manufacture of intermediate product cleared for export.
 
The supplies to SEZ are to be treated as export for the purpose of this Rule in terms of the provisions of Section 2(m) of SEZ Act, 2005, the supplies to DMRC by availing Notification No. 6/2006-C.E. which though deemed exports in terms of the provisions of EXIM policy, cannot be treated as export for the purpose of Rule 5 of Cenvat Credit Rules, 2004. Therefore the provisions of this Rule are not applicable in respect of accumulated Cenvat credit on account of supplies to DMRC by availing full duty exemption under Notification No. 6/2006-C.E. As regards supplies to 100% EOUs, as rightly observed by the Commissioner (Appeals) there is no evidence that the goods have been used by those EOUs in manufacture of finished product which were exported out of India under bond. Therefore Tribunal do not find infirmity in the impugned order.
 
Decision: -Appeal dismissed
 
Comment;- There were certain decisions where the refund of unutilized credit was allowed when the goods are supplied to 100% EOU. But now this decision has inserted one more condition that the 100% EOU must have utilized this input for export of good under bond. Hence, the litigation go on and manufacturer has to show the goods procured by 100% EOU has beeen used in export goods.
 
 
 
 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com