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TMI Blog1998 (7) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... by issue of show cause notices that they have cleared excisable goods viz. steel furniture, forklift trucks and spares falling under sub-headings 9401.00, 8427.00 and 8431.00 without payment of duty to 100% Export Oriented Units in violation of the condition for exemption under Notification No. 57/94, dated 1-3-1994 and Notification No. 1/95, dated 4-1-1995. The charge was that the exemption is available only if the goods are used or consumed in the production of goods for export, whereas the disputed goods, according to the department, cannot be so used. After considering their reply and hearing them in the matter, the Commissioner held that in view of the CT-3 certificate produced as prescribed under the notification, forklift trucks are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs-exporters, if they have violated the condition either in not utilising the goods or not exporting as required in terms of the notification, the correct course open to the department is to take action against the concerned exporters who have violated the condition. The ld. Sr. Counsel on the same context, relied upon the Tribunal decision in the case of Collector v. Madras Radiators Pressings Ltd. - 1944 (69) E.L.T. 409 (Tribunal) in which the Tribunal has held that such a case is a short payment that arises not from any levy or any mistake associated with levy and payment, but from the failure of the buyer of the goods to account for them and/or to use them in the ways contemplated by the law when he was given the concession. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge the Commissioner s order taking this ground by denying the exemption is bad in law. Apart from this, we find that the ratio of the Tribunal decision in the appellants own case cited supra also supports their case. The Tribunal was dealing with similarly worded notification which included supply of furnitures under Tariff Item 40 of the old Central Excise Tariff to Santacruz Electronics Export Processing Zone (SEPZ) having the similar condition stipulating the use of material received under exemption notification in Export production. The charge there was also that this condition has been violated and the show cause notice has been issued to the manufacturer of the material so supplied. It is in this context that the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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