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TMI Blog2001 (9) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ea (DTA) without payment of proper duty of Excise by wrongly availing exemption under Notification No. 5/98-C.E. dated 2-6-98. The department took the view that the respondents did not satisfy the condition of re-processed in India for the purpose of availing exemption for the above goods in terms of Sr. No. 63 of the table annexed to the Notification and, therefore, they were not eligible for the exemption. This view of the department was based on the legal fiction, as enacted under the proviso to Section 3(1) of the Central Excise Act, that the goods manufactured in a 100% EOU were deemed to be manufactured outside India. On this basis, the department, by invoking the extended period of limitation under the proviso to Section 11A(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Central Excise Act as well as the provisions of Notification No. 2/95-C.E. as amended; that according to these provisions of law, any excisable goods manufactured or produced in a 100% EOU are deemed to be manufactured or produced outside India; and that, in this view, the respondents did not satisfy the condition of re-processed in India for availment of the benefit of exemption from payment of duty of excise in terms of Sr. No. 63 of the Table annexed to Notification No. 5/98-C.E. Ld. DR, therefore, contends that the respondents are liable to pay CVD on the aforesaid goods manufactured in their 100% EOU and cleared to the DTA during the period of dispute. He further submits that the invoices issued by the respondents under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Varsha Exports v. Union of India, 2000 (40) RLT 9 (Guj.) and M/s. Maiden Trading Co. Pvt. Ltd. v. Union of India Ors. [Order dated 12-9-2000 in CWP No. 3007/2000]. Counsel submits that the department s claim is no longer valid in the light of the decisions of the Hon ble High Courts. Ld. advocate also relies on the Supreme Court s decision in the case of Hyderabad Industries Ltd. v. Union of India [1999 (108) E.L.T. 321 (S.C.)]. He lastly submits that the issue involved in the present appeal is covered squarely by the decision of the Tribunal in the respondent s own case viz. CCE, Jaipur v. Maiden Trading Co. Pvt. Ltd. (supra). 6. We have considered the submissions of both sides. 7. We note that the Commissioner (Appeals) has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Sr. No. 63 of the Table annexed thereto. The Tribunal held that the party was eligible for exemption from payment of CVD on the recycled plastic agglomerate manufactured out of plastic waste and scrap (falling under Chapter 39) in their EOU and cleared to DTA. In that case, it was on the strength of Board s Circular No. 38/2000-Cus. dated 10-5-2000 that the adjudicating authority had confirmed a demand of CVD on Plastic Agglomerate (recycled) manufactured by the assessee (present respondents) in their EOU by re processing plastic waste and scrap and cleared to the DTA without payment of additional duty of Customs (CVD) by claiming exemption under Notification Nos. 5/98-C.E. dated 2-6-98 and 5/99-C.E. dated 28-2-99. The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the Notification for the purpose of availment of the exemption. In the present case, as noted by the Tribunal in the earlier case between the same parties, the only conditions to be satisfied by the respondents for claiming the benefit of exemption in terms of Sr. No. 63 were (i) the Plastic Agglomerates manufactured in their 100% EOU (and cleared to the DTA) were classifiable under any of the Chapter Headings 39.01 to 39.14 and the same were manufactured by re-processing plastic waste and scrap falling under Chapter 39 and (ii) such re-processing was carried out in India. Admittedly, the Plastic Agglomerates were classifiable under Chapter Heading 39.01 and were manufactured by re-processing/re-cycling plastic waste and scrap falli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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