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TMI Blog2019 (4) TMI 1683X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to that effect. In furtherance of their claim, the appellant has also produced two EPCG licence dated 21.2.2012 and 21.3.2012 in furthering of the Act. Similar issue has come up for consideration before this Tribunal in the case of M/S NITIN SPINNERS LIMITED VERSUS CCE, JAIPUR-II AND (VICE-VERSA) [ 2017 (7) TMI 394 - CESTAT NEW DELHI] , wherein it is held that the benefit of Notification No. 64/2008-Cus. is also available to the EOU at the time of their debonding in terms of para 8.1 of the said notification. Appeal dismissed - decided against appellant. - Excise Appeal No. 52311 of 2015-DB - Final Order No. 50554/2019 - Dated:- 26-4-2019 - Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant had procured the capital goods duty free in terms of Notification No. 23/2003 dated 31.3.2003 and has not paid the Central Excise duty as required to be paid by them at the time of debonding of their 100% EOU by claiming the benefit under prevailing Export Promotion Capital Goods Scheme for DTA units. The appellant, as per the direction of departmental authority paid the differential duty amounting to ₹ 11,78,433/-. Subsequently, the appellant filed refund of the aforesaid amount on the ground that the Development Commissioner, Noida, South Economic Zone, had permitted the appellant to clear the goods under the said EPCG Scheme and also accorded no objection letter dated 21.2.2012. The appellant had accordingly, submitted the EP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It was also prayed that the notification has to be given full effect without any addition or deletion of any portion therein. 5. Learned Advocate also submits that in any case if the appellant is required to pay the duty without the benefit of EPCG scheme, the entire duty paid at the time of debonding would be eligible for Cenvat credit under the provisions of Cenvat Credit rules, which will make the entire exercise revenue neutral. In view of above the differential duty which has been collected from the appellant is not permissible within the Central Excise Act. 6. Learned Authorized Representative on behalf of the Revenue submits that the appellant has obtained capital goods duty free scheme meant for 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Cus. dated 9.5.2008. The appellant has obtained necessary permission and No Objection Certificate from the Development Commissioner to that effect. In furtherance of their claim, the appellant has also produced two EPCG licence dated 21.2.2012 and 21.3.2012 in furthering of the Act. We find that similar issue has come up for consideration before this Tribunal in the case of M/s Nitin Spinners Limited Versus CCE, Jaipur-II and (Vice-Versa), wherein it is held that the benefit of Notification No. 64/2008-Cus. is also available to the EOU at the time of their debonding in terms of para 8.1 of the said notification. Para 8 of the said order which is relevant is reproduced as under : 11. The contention of the appellant is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder EPCG Scheme. We are in agreement with the original authority regarding absence of any exemption Notification covering the situation as explained above, to support the claim of the appellant-assessee for an exemption from Central Excise duty. 12. It should be noted that the Foreign Trade Policy is for enunciating the Policy of the Government with reference to export/import and trade promotion. Various schemes and procedures were stipulated under the Policy. The rates of duty applicable to any goods either manufactured in India, imported into or exported out of India are to be governed by specific tariff entries and notifications issued by Ministry of Finance who are incharge of tax collection on such goods. The rates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue neutrality is being raised only to avoid interest payment as the duty has not been discharged in time. The concept of Revenue neutrality may have relevance in order to determine the malafide or bonafide intent to the assessee. The same cannot be pleaded for non payment of tax itself. Even the availability of credit itself is subject to various conditions in terms of Cenvat Credit Rules, 2004. The availability of such credit cannot be presumed in order to contest the duty liability of the appellant assessee, which is in terms of applicable provisions of the Act and the Notification thereunder. We have perused case laws relied upon by the appellant-assessee. No general law has been laid down in these decisions to support the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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