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TMI Blog2016 (7) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... cking material from the exporter without payment of duty vide Notification No.43/2001-CE (NT) dated 26.06.2001 is incorrect. Held that:- when such Annexure 1 certificate continued to be live and are not cancelled or declared void by department after following due procedure. The clearances effected on the strength of such annexure by the appellant cannot be denied the benefit of exemption provided by notification 43/2001 CE (NT) dated 26.06.2001. Unless annexure 1 certificate is cancelled or rejected by competing authority by following procedure under Section 35 E department cannot invoke Section 11A - impugned order is unsustainable and requires to be set aside, which we hereby do. - Decided in favor of assessee. - E/3255/2012 - Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that they had availed the exemption on the basis of Notification No.43/2001 on the strength of Annexure 1 of the notification. They contended that unless the Annexure 1 is set aside by following procedure laid down in Section 35E by competent authority, it is not permissible for the Department to raise demand; in support of this contention they placed reliance on various decisions of Tribunal and High Courts. It was also argued that demand of duty for contravention of Central Excise (Removal of Goods at Concessional rate of Duty for manufacture of Excisable Goods) Rules 2001 should not be on them but the exporter, who are the persons availing the benefit of exemptions under said notification. 3. On behalf of the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any of these Annexure 1 certificate has been cancelled by the Central Excise authorities. Viewed in this context we are of the opinion that when such Annexure 1 certificate continued to be live and are not cancelled or declared void by department after following due procedure. The clearances effected on the strength of such annexure by the appellant cannot be denied the benefit of exemption provided by notification 43/2001 CE (NT) dated 26.06.2001. We find that this view finds sustenance in a number of decisions as discussed under: a. In the case of Teknik Plant Machinery Vs CCE, Pune / [2014 (309) ELT 573 (Tri-Mum)], the Tribunal has held that the issue of Show cause notice demanding duty without first cancelling annexure 1 is not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been cancelled by the Central Excise authorities. The Commissioner (Appeals) in her order acknowledges that the Annexure has been signed by the AC/DC Central Excise but has not raised the question of cancellation of Annexure I . In fact the Commissioner (Appeals) states that Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 procedure is not applicable but at the same time does not go into the question of validity of Annexure-I or the cancellation of Annexure-I. 9. As mentioned above, Annexure-I is stated to be live . Revenue does not controvert this fact. It is, therefore not understood how the show cause notice could be issued demanding duty without proposing to cancel the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the appellants also we find that Annexure-I which clearly granted exemption to the appellants has not been cancelled. Therefore, the demand of duty against the appellants and imposition of penalty is not legal. b. In the case of Madurai Power Corporation Vs Dy CCE Madurai / [2008 (229) ELT 521 (Mad)], the Hon'ble High Court held that unless annexure 1 certificate is cancelled or rejected by competing authority by following procedure under Section 35 E department cannot invoke Section 11 A The relevant portion of the judgment is reproduced below. 23. In our opinion, there is no nexus between Section 11A and Section 35E. Section 11A does not indicate that the legislature intended to override Section 35E. Both sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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