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TMI Blog2012 (9) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... allows the applicant to take re-credit of said amount in their Cenvat Credit Account. The impugned order-in-appeal is modified to this extent. X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 2.3 The Assistant Commissioner, Central Excise Division, Jodhpur vide his order-in-original No. 505/2008-R, dated 1-10-08 rejected the rebate claim of Rs. 313191/-. 3. Being aggrieved by the said order-in-original, respondent filed appeal before Commissioner (Appeals) who allowed the same on the ground that Notification No. 24/2003-C.E., dated 31-3-2003 is a conditional notification and it was not mandatory for assessee to avail it. 4. On being aggrieved by the impugned Order-in-Appeal, the applicant department has filed this Revision Application under Section 35EE of Central Excise Act, 1944 on the following grounds : 4.1 The question to be decided in this application is as to whether an 100% EOU can pay duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1978); (b) ……………. [Notification No. 24/2003-C.E., dated 31-3-2003] Further, w.e.f. 13-5-2005 following para was inserted in the sub-section (1) of Section 5A of Central Excise Act, 1944. "[(A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.]" Resultantiy, it became mandatory for all 100% EOU to avail the exemption issued under this Section and not to pay duty on export clearance. 4.2 From the above, it is apparent that the said exemption No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riented undertaking, a EHTP Unit was not required to pay duty on goods since there was an unconditional exemption for impugned goods in terms of Notification No. 24/2003-C.E., dated 31-3-2003. On an appeal filed by the respondent, Commissioner (Appeals) allowed the appeal treating the said Exemption Notification as a conditional one since the DTA clearances were not exempted from payment of duty. 9. Government notes that the exemption from payment of Central Excise Duty in terms of Notification No. 24/2003-C.E., dated 31-3-2003 is for all the exported goods produced or manufactured in Export Oriented Undertaking without any condition. The goods cleared in DTA are not covered by the exemption notification. It cannot be considered as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) additional duty of excise leviable thereon under Section 3 of Additional Duty of Excise (Goods of Special Importance) Act, 1957, and (c) Additional duty of excise leviable thereon under the Section 3 of Additional Duty of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) It may be noted that this 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. 11. 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in clause 5A(1A), the applicant cannot pay duty as the goods were exempted from payment of duty of excise. As such, the duty paid erroneously cannot be called as duty of excise but it becomes mere a deposit with Government as the applicant was not required to pay any duty in the instant case. So, the said erroneously paid duty is not rebatable under Rule 18 of Central Excise Rules, 2002. Since, Govt. cannot retain any amount which is not due to it, the amount so collected is allowed to be re-credited in Cenvat Account. Government allows the applicant to take re-credit of said amount in their Cenvat Credit Account. The impugned order-in-appeal is modified to this extent. 10. The revision application is disposed off in terms of above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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