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TMI Blog2017 (12) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in Excise Appeal No.1773/2010 in the case of Wellspring Universal. 2. The respondent-assessee is a 100% Export Oriented Unit (EOU) engaged in the manufacture and exports of hand tools, welding machine and safety products. 3. Two show cause notices dated 26th September 2008 and 6th January, 2009 were issued, inter-alia alleging that the respondent-assessee had wrongly claimed CENVAT credit of Rs. 33,70,340/- for the period 2006-07 and up to 30th June, 2008 and Rs. 1,35,554/- from 1st July, 2008 to 10th December, 2008 respectively, on goods purchased from their sister unit, namely Wellspring India Pvt. Ltd., Bahadurgarh (Haryana). 4. Vide order in original dated 31st July, 2009, Additional Commissioner, Central Excise (Delhi), reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent-assessee taking refund. Revenue has not been out of pocket. Refund was of the amount paid. 9. Counsel for the Revenue had drawn our attention to Rule 3(1) and submitted that manufacturer or producer of the final product would be entitled to benefit of CENVAT credit only if duty was leviable under the Act. The submission was that Wellspring India Pvt. Ltd., the supplier, was also a 100% export unit and on the transaction, no duty was required to be paid in terms of paragraph 6.13(a) of the Foreign Trade Policy 2004-09, being a case of Inter Unit Transfer. CBEC Circular No.17/2006-Customs dated 1st June, 2006 was relied upon. Reference was made to Section 5A (1A) of the Act. 10. In order to consider the submission, we would l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be fulfilled before or after removal, as specified in the notification in respect of excisable goods. The proviso stipulates that unless it is provided in such notification, no exemption shall apply to excisable goods which are produced or manufactured in a free trade zone or special economic zone or by a 100% export oriented undertaking. Sub-Section (1A) of Section 5A is applicable in case of exemption granted under the notification in respect of any excisable goods from whole of the duty of excise leviable thereon absolutely. Sub-Section (1A) of Section 5A will not apply in cases where exemption is not granted absolutely, but is subject to the conditions which have to be fulfilled before or after removal, as specified in the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as the supplier and the respondent-assessee were related to each other, but counsel for the Revenue has stated that they have not examined the said aspect whatsoever and it is not the pleaded case of the Revenue. The show cause notice and the order in original do not record that the supplier has taken undue benefit by asking the respondent-assessee to pay the duty. Even otherwise, the impugned order permits the Revenue to proceed in case of any wrongdoing in the case of the supplier. 13. This being the position, we do not think the impugned order requires any interference. Duty has been paid by the respondent-assessee to the supplier, hence they are entitled to benefit and refund on export. Paragraph 6.13(a) imposes conditions and is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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