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2023 (9) TMI 644 - AT - Central ExciseExemption benefit on clearance of goods to UNICEF by the appellant's 100% EOU under N/N. 108/95-CE dated 28.08.1995 - denial of benefit on the ground that this Notification is not extended to the 100% EOU and the same is applicable only to DTA Unit - HELD THAT - The appellant have claimed the Exemption Notification No. 108/95-CE dated 28.08.1995 but the same is not available to the 100% EOU. However, there is no dispute that while calculating the duty of Excise in case of 100% EOU, all duties of customs to be taken along with the Exemption Notification of customs for calculating the duty for clearance of goods by 100% EOU - In the present case, the clearance of customs goods to UNICEF is clearly covered by Customs Notification No 84/97-Cus dated 11.11.1997, therefore, even if the Exemption Notification No. 108/95-CE dated 28.08.1995 is not available to the appellant but the benefit of Custom Notification 84/97-Cus has to be extended for calculating the duty and since the said Notification exempts the custom duty, the appellant is not liable to pay any duty. The learned Commissioner (Appeals) has relied upon on the exactly identical issue a judgment of RATANGIRI TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II 2003 (6) TMI 136 - CESTAT, NEW DELHI , LUCKY STAR INTERNATIONAL VERSUS UNION OF INDIA 2000 (7) TMI 964 - GUJARAT HIGH COURT and HANDUM INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD 2005 (4) TMI 239 - CESTAT, BANGALORE . Moreover similar view has been expressed by the Tribunal in case of GENERAL OPTICS (ASIA) LTD. VERSUS COMMISSIONER OF C. EX., PONDICHERRY 2004 (3) TMI 252 - CESTAT, CHENNAI , therefore, it is not the findings of the Commissioner on his independent view but is supported by various decision. The appellant are eligible for exemption even if not by virtue of Notification No. 108/95 but by the virtue of Notification No. 84/97-Cus. Accordingly, the demand is not sustainable - Appeal allowed.
Issues Involved:
- Interpretation of Exemption Notification No. 108/95-CE dated 28.08.1995 for 100% EOU - Applicability of Customs Notification No. 84/97-Cus dated 11.11.1997 for duty calculation Summary: The appeal challenged the denial of Exemption Notification No. 108/95-CE dated 28.08.1995 for goods clearance to UNICEF by the appellant's 100% EOU. The Commissioner (Appeals) held that the said Notification does not extend to 100% EOU, applicable only to DTA Unit. The appellant argued for consideration of Notification No. 84/97-Cus dated 11.11.1997 for duty calculation based on a previous order-in-appeal. The revenue contended that the appellant is liable to pay duty as the Exemption Notification is not extendable to 100% EOU. Upon review, it was found that while Exemption Notification No. 108/95-CE dated 28.08.1995 is not available to 100% EOU, the duty calculation for 100% EOU must consider all customs duties along with Customs Notification No. 84/97-Cus dated 11.11.1997. The clearance of goods to UNICEF falls under the purview of the Customs Notification, exempting custom duty. The Commissioner (Appeals) in the appellant's previous case provided a detailed analysis citing relevant case laws, emphasizing the legal fiction treating clearances by 100% EOU as imports. The Tribunal concurred with the Commissioner's reasoning, supported by case laws like Ratnagiri Textiles Ltd and Handum Industries Ltd, and set aside the impugned order, allowing the appeal.
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