Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

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