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TMI Blog2012 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... rs-in-appeal No. P-III/VM/102/09, dated 17-7-2009 passed by the Commissioner (Appeals), Central Excise, Pune arising out of Order-in-Original No. P-VIII/136/Refund/CE/08-09, dated 19-5-2009 as passed by the jurisdictional Assistant Commissioner, Central Excise, Division-VIII, Pune-III. 2. Brief facts of the cases are that the Applicant a 100% EOU, manufacturer of Equipments for Breweries and Ethanol Plants had cleared certain export consignment on 31-3-2008 under ARE-1 Nos. 179 to 182 and Invoice Nos. 231 to 234 all dated 31-3-2008 in terms of Rule 18 of the Central Excise Rules, 2002 on payment of duty through Cenvat Account. Subsequently the Applicant vide their letter dated 23-9-2008 stated that they had cleared their goods on payment of duty through Cenvat Account with an intent to claim rebate of duty in respect of the said export consignment cleared in terms of Rule 18 of the Central Excise Rules, 2002. They further stated that they came to know that there was no provision for an EOU to claim rebate of duty under Rule 18, however after receipt of Export documents duly endorsed by the Custom authorities, they filed a refund claim of Rs. 38,69,621/-. The adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Applicants had cleared goods for export on payment of duty without availing benefit under Notification No. 24/2003-C.E. The department had not disputed the duty paid nature of export. In the present case the Applicants had not claimed the benefit of exemption notification and cleared the goods. As such the benefit was available to them and they could have been cleared the goods without payment of duty. Non claiming of the benefit at the time of clearance for export do not deprive their right to claim Exemption by way of refund. It is a well settled legal position that exemption can claim by way of refund. 4.6 Further case laws relied upon :- (i) 1994 (73) E.L.T. 401 (CEGAT) - M/s. Maruti Udyog Ltd. v. C.C.E. (ii) 1994 (73) E.L.T. 835 (CEGAT) - M/s. Kirloskar Oil Engines Ltd. v. C.C.E. (iii) 1994 (74) E.L.T. 344 (CEGAT) - Natraj Paints Ltd. v. C.C.E., Bom. (iv) 2000 (118) E.L.T. 271 (CEGAT-LB) - Breach Candy Hospital Research Centre v. C.C.E., Bom. (v) 1991 (53) E.L.T. 105 (CEGAT) - Vijaylamxi Bottler (P) Ltd. v. C.C.E. (vi) 1991 (53) E.L.T. 398 (CEGAT) - Advance Paints Pvt. Ltd. v. C.C.E. (vii) 1991 (53) E.L.T. 558 (Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 has not been given in absolutely. Vide the said notification Government has provided conditional exemption that means if a 100% EOU clear the goods for DTA then they have to pay the duty, however if they clear their goods for export, the same are to be exempt. Hence, merely producing the goods as a 100% EOU may not give the effect of exemption until the same goods were not clear for export. However, Government of India vide insertion of Section 5A(1A) inserted w.e.f. 13-5-2005 stated that where an exemption from the whole of duty of excise provided under Section 5A(1) in respect of any excisable goods have been granted absolutely the manufacturer of such excisable goods shall not pay the duty of excise of such goods. In the Applicant s case, the exemption has been granted conditionally not absolutely, hence, the option is with the Applicants to pay the duty or not on the clearance of export goods produced in their premises. The Applicants rely upon the decision made the Hon ble Mumbai Tribunal in the matter of M/s. Bombay Dyeing and Manufacturing Co. Ltd. v. C.C.E., Mumbai [2001 (135) E.L.T. 1392 (Tri.-Mum.) vide the above judgment the Hon ble Tribunal has decided that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of Order Nos. 371-372/07, dated 28-6-2007 and 121/09, dated 12-5-2009 in the matter of Commissioner of Central Excise, Raigad v. M/s. Raj Chemicals. 4.9 In this case foreign currencies sale proceeds stands realized on Government of India Order No. 886/06, dated 29-9-2006 in the matter of M/s. A.A. Cotton Mills, Salem vide the above judgment the Hon ble Joint Secretary has held that core aspect in determination of rebate claim is the fact of manufacture and payment of duty thereon and its subsequent export. In case this fundamental requirement is met, other attendant procedural requirements can be condoned. 5. The case was listed for personal hearing on 3-2-2011 was attended by Shri R.K. Sharma, Sr. Counsel attended on behalf of the Applicant and re-iterated the ground of the Revision Application. 6. Government has considered written submission of the applicant and also perused the orders passed by the lower authorities. 6.1 Government notes that in this case matter involves a basic and main disputed issue that as to whether an EOU can export its goods on payment of Central Excise Duty and then claim the rebate of duty paid an exported goods. The Applicant has ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification does not require fulfilment of any condition for seeking the exemption in the matter of exports to any country. The exemption is absolute, unconditional without any string attached to it. 9. The only proviso to this Notification is that the exemption is not applicable to such goods if brought to any other place in India. This means that this exemption is not available to the goods cleared for home consumption. There is no condition of exemption from payment of duty for exported goods. Hence this Notification No. 24/2003-C.E., dated 31-3-2003 is absolute, and unconditional and rightly covered under Section 5A(1A) of Central Excise Act, 1944 which reads as under : (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon : Provided that, unless specifically provided in such notification, no exemption therein shall apply to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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