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TMI Blog2010 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... or procure indigenous goods without payment of duty by debiting the said script - debits made in SFIS would not amount to exemption from payment of duty - order is liable to be set aside. X X X X Extracts X X X X X X X X Extracts X X X X ..... e would submit that in a similar issue, the Tribunal in the case of Tanfac Industries Ltd. v. CCE - 2009 (235) E.L.T. 103 (Tri.-Chennai) held that once an amount is debited to the DEPB script, it was amount to the goods have been cleared as duty paid. He would submit that assessee was aggrieved by such an order and carried the same in appeal before the Hon'ble High Court of Judicature at Madras and the said appeals were dismissed as reported at 2009 (240) E.L.T. 341 (Mad.). It was also brought to my notice that a SLP was filed by the assessee against the order of the Hon'ble High Court which was also dismissed by the Hon'ble Supreme Court [2009 (244) E.L.T. A121 (S.C.)]. It is his submission that the reading of the order of Bench and of the Hon'ble High Court would indicate that any amount made by payment in debiting in DEPB script cannot be considered as goods are exempted, and goods are to be treated as duty paid. He would submit that the scheme of DEPB and SFIS is pari-materia. He would also rely upon the decision of the Hon'ble Supreme Court in the case of S.K. Gupta v. K.P. Jam, AIR - 1979 Supreme Court 734, 743 for the proposition that where the definition of an expression in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods under Invoice Nos. 1&2 from the appellant and it can be seen that the amount of duty liable to be paid on such invoices has been debited in the said licences by the Suptd. of Central Excise, in-charge of the appellant's factory. 7. On this factual matrix, it may be necessary to look into the Notification No. 34/2006-CE dated 14-6-2006, I may reproduce the said notification: Served from India Scheme - Exemption to goods supplied to service provider. In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts goods, namely. (i) in the case of hotel or stand alone restaurant, office equipment, professsional equipment, office furniture and consumables, related to its service sector business and food items and alcoholic beverages but excluding other products classifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise, as the case may be, may allow; Explanation - For the purposes of this notification, - (i) "Capital Goods" has the same meaning assigned to it in paragraph 9.12 of the Foreign Trade Policy; (ii) "Foreign Trade Policy" means the Foreign Trade Policy 2004-09, published as the notification of the Government of India in the Ministry of Commerce and Industry, vide No. 1/2004, dated the 31st August, 2004, as amended from time to time; (iii) "Regional Authority" means the Director General of Foreign Trade appointed under section 6 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992) or an officer authorized by him to grant a certificate under the said Act. [Notification No. 34/2006-C.E., dated 14-6-2006]. 7.1 It can be seen from the above that the exemption which has been granted under the notification was subjected to specific conditions. It can be seen from condition No. (i) that the exemption to the goods cleared from the factory premises of an assessee will be granted only if the SFIS certificate is produced before the authorities i.e. Central Excise Officer at the time of clearance and for "debit of the duties leviable on the goods, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise officer shall also keep a record of such clearances. (iii) The holder of the SFIS scrip shall intimate in writing the details of debit by Excise to the Customs authorities at the Port of Registration for entering full details of such debit by Excise in the records of Customs at the Port of Registration. The scrip holder shall give this intimation to Customs before clearance of any further consignment either by way of import or domestic procurement. The jurisdictional Central' Excise officer shall also intimate in writing the details of debit made, to the Customs authorities at the Port of Registration. It shall be the responsibility of the scrip holder to ensure that he gives proper intimation of debit by Excise to the Customs authorities at the Port of Registration before further clearances. The Customs authorities at the port of registration shall permit. duty debit on imports after verifying the details of debit, if any done by Central Excise authorities." 8.1 It can be seen from the above reproduced clarification that the CBEC specifically mentioned the conditions that has to be performed by the jurisdictional Central Excise Officer of the assessees from where good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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