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TMI Blog2017 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured and cleared by unit other than EOU should not be wholly exempted from the excise duty or should not be chargeable to nil rate of duty. It is evident that the fact of the respondents not availing cenvat credit is not a relevant consideration in deciding the question whether they comply with N/N. 23/2003-CE - this Tribunal held that the assessee is not required to pay the differential duty. The appellant is not required to pay any duty in terms of N/N. 23/2003-CE dated 31.03.2003 read with N/N. 29/2004-CE dated 09.07.2004 - appeal allowed - decided in favor of appellant. - E/2235/2008 - A/61391/2017-EXP[DB] - Dated:- 25-7-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri. R. Sant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60567-60569/2017 dated 06.04.2017, wherein this Tribunal observed as under: 6. We find that the show cause notice has sought to deny the benefit of condition no. (iii) of the Notification, which reads as below: (iii) the goods manufactured and cleared by the unit other than EOU are not wholly exempted from duties of excise or are not chargeable to nil rate of duty. The denial is based on the fact that the respondents are not availing the cenvat credit facility on the inputs. A reading of the above condition shows that the goods for which exemption is claimed when manufactured and cleared by unit other than EOU should not be wholly exempted from the excise duty or should not be chargeable to nil rate of duty. It is evident th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition no. (iii) against Sr. No. 3 of Notification No.23/2003-CE that the cotton yarn, if manufactured and cleared by a unit other than export oriented undertaking is not wholly exempt from duties of excise or chargeable to nil rate of duty also stands fulfilled in the instant case. Therefore appellants were entitled to make clearances in DTA after paying duty at the rate prescribed at Sr. No. 3 of the said Notification. The Hon'ble CESTAT while remanding the case to the Commissioner (Appeals) has also made similar observation. Since on merit the case is in favour of the appellant. I am not going into the issue of limitation. 7. The view taken by the Commissioner (Appeals) is also supported by the judgment in the case of Hanil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 4 would be applicable, otherwise Sr. No. 3 would be applicable. 14. In the present case, for the units (other than 100% EOU), two options are available viz. pay 8/4% excise duty (without any condition) or NIL rate of excise duty provided no Cenvat credit is taken on the inputs or capital goods used in the manufacturing process. Appellant has contended that they have not availed Cenvat credit on inputs, hence NIL rate will be applicable to them. Both the Notification Nos. 29/2004-C.E. and 30/2004-C.E., as held by us earlier are inapplicable for 100% EOU in view of proviso to Section 5A(1) of the Central Excise Act and therefore availment or non-availment of Cenvat Credit by 100% EOU is irrelevant. In any case unlike normal unit, 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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