K. VINOD CHANDRAN, J.

1. The issue in the above Appeal is in a narrow compass as to whether the assessee is entitled to input tax credit under Section 11 of the KVAT Act, 2003 (for short “KVAT Act”). The facts in so far as the claims raised are that the assessee manufactures products in its factory at Vadavathoor in Kottayam. The assessee is engaged in the manufacture of tyres, tubes and flaps. It has various units all over the Country and for the purpose of export, the assessee manufactures specific items with a Unique Product Code, which is not done in all the units. For example, if tyres for export is manufactured in Vadavathoor at Kottayam; tubes and flaps for export will be manufactured in some other units. However, the manufacture for export is made on product specifications identified by the Unique Product Code generated for the purpose of filing returns before the Excise Authorities.

2. The assessee on manufacture of these products for export, stock transfers it on consignment to its godown at Puzhal in Tamil Nadu, which is stated to be a godown for stocking goods exclusively for the purpose of export. The export is from the said godown and it is an admitted fact that certain exports are carried out from the separate manufacturing units itself.

3. The assessee claimed input tax credit of the tax paid on purchase of raw materials from registered dealers to the extent of the stock transfer on consignment, made to the godown of the assessee at Tamil Nadu. The assessee approached the Clarificatory Authority, since it was opined by the assessing authorities that Section 13 would not be applicable since the stock transfer on consignment would not be in the course of export. The Clarificatory Authority found that the stock transfer can be said to be in the course of export only if there is certainty that the goods are headed for their foreign destination and not diverted for domestic use. On facts it was found that the manufactured goods received from various manufacturing units of the assessee are pooled at the godown in Tamil Nadu and exported outside the Country. The ultimate destination of the goods would be decided only after the goods are stocked in the godown at Tamil Nadu. The goods according to the Clarificatory Authority joined the export stream only from the godown at Puzhal in Tamil Nadu.

4. The learned Counsel for the appellant submits that the goods manufactured for export in Vadavathoor unit of the appellant is destined for export, especially since it is manufactured under the Unique Product Code and the returns filed before the Excise Authorities require the assessee to export the goods and otherwise scrap the same for reason of the assessee not having been assessed to any excise duty for the manufactured goods intended only for export. Hence, there could be no diversion of the manufactured goods as has been found by the Clarificatory Authority. The learned Counsel would also rely on the decisions of the Hon'ble Supreme Court reported in Burmah Shell Oil Storage and Distributing Co. of India Ltd. vs. Commercial Tax Officer, AIR 1961 SC 315, Ben Gorm Nilgiri Plantations Co-Conoor (Nilgiris) vs. Sales Tax Officer, AIR 1964 SC 1752 and State of Haryana vs. Nipha Exports Pvt. Ltd. (2007) 8 VST 466 (SC).

5. The learned Senior Government Pleader, however, submits that merely because the assessee intended to export the goods manufactured, there can be no refund of input tax granted under Section 13, since the assessee would also have to prove that the stock transfer is in the course of export, for which a prior export order is imperative; without which there could be no claim raised that the stock transfer was in the course of export. The learned Government Pleader also submits that the decisions cited by the appellant would only indicate that without there being prior export order before the stock transfer is made, there can be no claim raised that the stock transfer was in the course of export. The sale of goo