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2015 (9) TMI 516 - AT - Central Excise100% EOU - Export / DTA clearance of non-excisable / exempted goods - exempted goods versus Zero rated goods or Nill rated goods - interpretation of an exemption notification - Notification No.22/2003-CE or No.52/2003-Cus - Whether a 100% EOU is entitled to exemption on inputs used in the manufacture of finished goods, which are either non-excisable or if imported, are chargeable to Nil or exempted rates, in view of second Proviso to Clause 6 of Notification No.22/2003-CE, dt.31.03.2003 or Proviso to Clause 3 of Notification No.52/2003-Cus, dt.31.03.2003. Held that - If this strict interpretation is not followed, then the provisos under consideration can never be made applicable for the recovery of input duty where finished goods are cleared at Nil , Exempted or free rates because all of them will be excisable as per the definition of excisable goods under Section 2(d) of the Central Excise Act, 1944. Such an interpretation will be discriminating to DTA units as all such inputs could be routed through 100% EOU to claim full exemption when similar clearances by DTA units will affect duty at intermediate stage. It has to be held that non-excisable words used in second proviso to Clause 6 of Notification No.22/2003-CE, dt.31.03.2003 and Proviso to Clause 3 of Notification No. 52/2003-Cus, dt.31.03.2003 will embrace in its expression all zero rated finished goods where on account of full exemption, or Nil / Free rates, or where no rate is specified under the relevant tariffs. - Decided against the assessee.
Issues Involved:
- Interpretation of the second proviso to Clause 6 of Notification No. 22/2003-CE and the proviso to Clause 3 of Notification No. 52/2003-Cus. - Whether the terms "non-excisable" and "nil rate of duty" include goods that are exempted or have no specified duty rate. - Applicability of duty exemption on inputs used by a 100% EOU in the manufacture of finished goods cleared in DTA. Issue-wise Detailed Analysis: 1. Interpretation of the Proviso: The core issue revolves around the interpretation of the second proviso to Clause 6 of Notification No. 22/2003-CE and the proviso to Clause 3 of Notification No. 52/2003-Cus. The provisos state that no exemption on inputs will be available if the finished goods are either non-excisable or if imported, are leviable to nil or exempted rates of duty. The Appellant argued that "free rate" cannot be equated with "nil/exempted rate" and cited Geetanjali Woolens Pvt. Ltd. Vs CCE Vadodara to support this. 2. Conflicting Judgments: The Division Bench referred to conflicting judgments: Synergies-Doorway Automotive Ltd. Vs CC&CE Visakhapatnam-I and Indira Printers Vs CCE Delhi-II. In Synergies-Doorway, it was held that the proviso applies only when finished goods are non-excisable, while Indira Printers held that the proviso applies even to excisable goods that are exempted or charged to nil duty. 3. Arguments by the Appellant: The Appellant contended that their finished goods (Solar Panels) are excisable as per Section 2(d) of the Central Excise Act, 1944, and thus not hit by the provisos. They argued that interpreting "nil rate" as "non-excisable" would create anomalies and disadvantage 100% EOUs compared to DTA units. They also suggested that the word "or" in the provisos should be read conjunctively as "and" to avoid absurd results. 4. Arguments by the Revenue: The Revenue argued that "nil" and "free" rates denote the same zero resultant effect, supported by the Madras High Court in Century Flour Mills Ltd. Vs UoI. They emphasized that the intention behind the provisos is to recover duty foregone on inputs used in the manufacture of finished goods cleared in DTA at nil or exempted rates. They cited CBEC Circular No. 54/2004-Cus to support their interpretation. 5. Larger Bench Findings: The Larger Bench framed the question of law as whether a 100% EOU is entitled to exemption on inputs used in the manufacture of finished goods that are either non-excisable or chargeable to nil or exempted rates. The Bench concluded that the definition of "excisable goods" under Section 2(d) of the Central Excise Act, 1944, does not apply to the interpretation of the exemption notifications. The words "non-excisable" in the provisos include all zero-rated finished goods, whether due to full exemption, nil/free rates, or no specified rate. 6. Strict Interpretation of Exemption Notifications: The Bench emphasized the need for a strict interpretation of exemption notifications, as established by the Supreme Court in various cases. They held that the intention behind the provisos is to ensure duty is paid on inputs when finished goods do not attract any duty. 7. Conclusion: The Bench concluded that the words "non-excisable" in the provisos cover all finished goods with zero effective duty rates, including those fully exempted or with nil/free rates. This interpretation aligns with the intention to prevent 100% EOUs from avoiding duty on inputs when finished goods are cleared in DTA at zero rates. The question of law was answered in favor of the Revenue and against the assessee. Pronouncement: The judgment was pronounced in court on 08.09.2015.
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