Per T.K. Jayaraman :

These appeals have been filed against Orders in Appeal Nos. 247 & 248/2003-CE dated 25.8.03 passed by the Commissioner of Customs and Central Excise (Appeals) Cochin.

2. The facts of the case are as follows:-

The appellants M/s. Tata Tea Ltd., a 100% EOU, received black tea on payment of duty as input for use in the manufacture of instant tea. They availed Cenvat credit of the duty paid in respect of such black tea. Since the instant tea manufactured by them was exported, they could not utilize the Cenvat credit. Hence, they applied for refund of Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2002. The Original Authority rejected the refund on the ground that as a 100% EOU, the appellants should have followed the procedure prescribed under Notification 1/95. In other words, the original authority felt that the appellants could have obtained the input without payment of duty. Hence, the refund claims were rejected. The Commissioner (Appeals) also upheld the order of the Original Authority. Hence, the appellants have come before this Tribunal for relief.

3. Shri Joseph Kodianthara learned advocate appeared for the appellants and Shri R.V. Ramakrishnappa learned JDR appeared for the Revenue.

4. The learned advocate cited Final Order No. 851/96 dated 29.3.96 passed by CEGAT Madras wherein in the case of the same appellant CEGAT decided the issue in the appellants favour. Learned SDR reiterated the contentions in the OIA.

5. We have gone through the records of the case carefully. Even though, the appellant is a 100% EOU, and could have obtained the input namely black tea free of duty by following the procedure in Notification 1/95, they obtained the input on payment of duty and were allowed to take Cenvat Credit. These facts are not under dispute. Rule 5 of Cenvat Credit Rules, 2002 provides for refund of Cenvat Credit taken on any input used in the manufacture of final products which are cleared for export. There is nothing in the Rule which states that, this rule is not applicable to 100% EOU. Moreover, the case law cited by the learned advocate deals with the same issue and has been decided in favour of the appellants. In the said case, CEGAT has relied on a decision reported in 1996 (13) RLT 67 (CEGAT-SRB)=1996 (82) ELT 256. The Commissioner (Appeals) should have followed this decision in the spirit of judicial discipline. As the issue is squarely covered, by the decision of the CEGAT, we allow the appeal with consequential relief.