2008 (6) TMI 402 - AT - Central Excise

Summary

Issues:
1. Rectification of impugned order based on pending appeal by the Department.
2. Eligibility of small scale exemption for clearance between units.
3. Refund of duty on exported goods processed by the second unit.

Analysis:

1. The Tribunal addressed the issue of seeking rectification of an earlier order due to a pending appeal by the Department against the impugned order. The Tribunal noted that the Department failed to raise this point during the hearing, leading to the rejection of the miscellaneous application for rectification. The Tribunal emphasized that the mere pendency of the Department's appeal was not sufficient grounds for rectification of the earlier order, and the application was deemed misconceived and rejected.

2. Regarding the appeal filed by the Department, the Tribunal examined the issue of eligibility for small scale exemption in the clearance of goods between units. The Tribunal observed that the show-cause notice did not include any charge stipulating that the clearance between units should be clubbed for determining eligibility for the exemption. The Tribunal also dismissed the Department's argument that the first unit should not have availed the exemption when clearing goods to the second unit. The Tribunal emphasized that since the processed goods were exported, and duty on those goods had been refunded to the respondents by the second unit, the initial value and duty rate of clearance from the first unit were immaterial. The Tribunal highlighted that any higher duty paid by the first unit would have resulted in a higher refund to the second unit, ultimately concluding that the Department's appeal lacked merit and was rejected.

3. The Tribunal concluded by rejecting the Department's appeal, emphasizing that the duty refund on the exported goods processed by the second unit rendered the initial clearance value and duty rate from the first unit inconsequential. The Tribunal's decision was based on the understanding that the credit of duty paid by the first unit was utilized by the second unit, leading to the refund, regardless of the initial clearance specifics.