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TMI Blog2011 (6) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... rters for doing job work for texturising under Notification No.34/94-CE dated 01.03.1994. The said yarn was imported by the exporters under Duty Exemption Scheme of the Export and Import Policy 1992-97. As per Trade Notice No.78/94 dated 02.06.1994 issued by the Commissioner of Central Excise, Surat, the exporter shall submit the proof of export within six months from the date of import of POY. As per Revenue, even after completion of six months, the respondents had not furnished the proof of export and thereby they have not fulfilled the conditions of the Notification No.34/94 in as much as they failed to prove to the satisfaction of the Assistant Collector that such textured yarn is exported or used in the manufacture of any other goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional Assistant Commissioner under Notification No.27/92 dated 09.10.1992 and No.34/94 dated 01.03.1994 to the effect that they undertake and agree to pay the excise duty leviable on texturised yarn, if any, in case they fail to submit the proof of export within the stipulated time and period. I have perused Notification No.34/94-CE dated 01.03.1994. It has been clearly envisaged therein that the exemption under the said notification is available if it is proved to the satisfaction of the Assistant Commissioner of Central Excise that such textured yarn is exported or used in the manufacture of any other goods which are exported out of India. I have also perused the Trade Notice No.78/94 dated 02.06.1994 which was issued in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present order of the Commissioner (Appeals) is impugned before us. 5. The Revenue in their grounds of appeal has again reiterated the same issues that in terms of Notification No.34/94-CE, the prime requirement is that the goods manufactured should be exported. The exemption is available subject to the requirement that the yarn manufactured is to be exported or should be used in any other goods exported. In as much as no proof of export has been placed on record, the benefit of Notification is not available. 6. After carefully considering the submissions made by both the sides we find that Notification No.34/94-CE dated 01.03.94 exempts textured yarn falling under Heading 54.03 of the Schedule of the Central Excise Tariff Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso provides that exemption is available to the textured yarn subject to the fact that the same is to be exported and not subject to the fact that the same is actually exported. Admittedly the textured yarn manufactured by the appellant was to be exported. The fact that the same has actually not been exported by the merchant exporter will not result in confirmation of demand of duty against the appellant, the Tribunal in the case of Shree Vithal S.S.K. Ltd. Vs. Collector of Central Excise reported in 1992 (59) ELT 54 (Tribunal) has held that in case the finally manufactured goods are not exported by the merchant exporters, the demand of duty can be raised only against the exporter and not against the manufacturer. 7. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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