P.G. Chacko, Judicial Member - These appeals filed by the revenue are directed against the common order passed by the lower appellate authority in three appeals filed by the assessee. In three separate orders passed by the original authority, in adjudication of equal number of show-cause notices, six refund claims of the assessee, which were filed under rule 5 of the Cenvat Credit Rules, 2004 had come to be rejected. Aggrieved, the assessee preferred appeals to the Commissioner (Appeals) and the same were allowed by the appellate authority. Hence, the present appeals of the revenue.

2. The respondent was engaged, during the material period, in the manufacture of excisable goods namely "Pre-fabricated Steel Buildings" falling under Chapter 94 of the First Schedule to the Central Excise Tariff Act. They were also availing the benefit of Cenvat Credit on inputs under the relevant provisions of the Cenvat Credit Rules, 2004. During the period of dispute, which comprises six quarters specified in the Table given below, the respondent supplied their product viz., "Pre-fabricated Steel Buildings" to Nokia India (P.) Ltd., a unit in Nokia Telecom Special Economic Zone (‘SEZ’ for short) Chennai. These clearances were effected under Letter of Undertaking without payment of duty in terms of rule 19 of the Central Excise Rules, 2002 :-

3. The respondent filed the above refund claims under rule 5 of the Cenvat Credit Rules, 2004 on the premise that their clearances of finished goods to the SEZ units were "exports" for the purpose of the said Rules. Show-cause notices were issued proposing to reject these refund claims on the ground that the claimant had not fulfilled the requirements of rule 5 ibid. In these show-cause notices, it was alleged that the goods cleared by the respondent to the SEZ units were capital goods and not inputs and further that such clearances were not to be considered as physical exports. On this basis, the refund claims were proposed to be rejected. The respondent denied the above allegations and contested the above proposals. It was in adjudication of this dispute that the original authority rejected the refund claims filed by the respondent. The adjudicating authority rejected the reliance placed by the party on the Board’s Circular No. 29/06-Cus., dated 27-12-2006 by observing that there was no mention of rule 5 ibid in the circular. It also relied on the Tribunal’s decision in S.V. Business (P.) Ltd. v. CCE 2006 (198) ELT 408 (Trib. - Mum.), as also on the decision in CCE v. Quality Screens 2008 (226) ELT 608 (Trib. - Mum.), wherein it had been held to the effect that, for a refund of unutilized Modvat/Cenvat Credit under rule 5 to a 100 per cent EOU, the claimant (EOU) must have physically exported goods out of the country. The adjudicating authority also opined that the goods cleared by the respondent to the SEZ units were more in the nature of capital goods rather than inputs and the same had not been used in any manner in, or in relation to, the manufacture of the goods exported by the SEZ units. The substantive view taken by the adjudicating authority was that rule 5 was not applicable where the "exports" by the claimant were all deemed exports. Setting aside the orders of the original authority, the learned Commissioner (Appeals) heavily relied on certain provisions of the Special Economic Zones Act, 2005 and of the Rules framed thereunder and arrived at the conclusion that any supply of goods to SEZ unit by any unit in the Domestic Tar