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TMI Blog2019 (7) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... us. Dated 25.05.2015. ii) Whether, the Appellate Tribunal was justified in not considering the mandatory provision of Rule 3 of Cenvat Credit Rules 2004?" Relevant facts briefly are that, the respondent is 100% Export Oriented Unit (EOU) engaged in manufacture of 'Pharmaceutical Ingredients' (API) falling under organic chemicals. Having paid Central Excise Duty on expired finished goods/inputs, it claimed a refund of Rs. 2,01,35,881/- on 27/09/2017 contending inter alia that being not aware about the issuance of Notification No.30/2015 CE dated 25.05.2015 to Principal Notification No.22/2013 CE dated 31.03.2003 and amended Notification No.34/2015-Cus. Dated 25.05.2015 (which allow the 100% EOU to remove such rejected inputs and expired goods for destruction outside the factory on which 'No duty' was leviable), got the expired finished goods/inputs destroyed outside the premises under supervision of Madhya Pradesh Waste Management Project (MPWMP) a division of Ramkey Enviro Engineers Ltd., an approved body appointed by the Pollution Control Board. As the destruction outside the unit was done without prior permission of the concerned officer, the Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act 1944 (1 of 1944), read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), the Central Government being satisfied, that it is necessary in the public interest so to do, hereby exempts,- (a) all goods specified in Annexure-I to this notification, when brought in connection with, - (i) manufacture and packaging of articles or for production or packaging or job work for export of goods or services, into export oriented undertakings (hereinafter referred to as the user industry) other than those units referred to in clauses (b) to (c); (ii) manufacture or development of software, data entry and conversion, data processing, data analysis, control data management or call center services for export, into Software Technology Park (STP) Unit or a unit in Software Technology Park Complex under the hundred percent export oriented scheme (hereinafter referred to as the user industry ); or (iii) the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when used by the unit engaged in the development of software for imparting training (including commercial training) subject to the condition that the unit imparting such training had achieved positive Net Foreign exchange Earning (NFE) prescribed in the Export and Import Policy and that no computer terminal shall be installed out side the premises of such user industry for this purpose; (ii) the goods when used by the unit engaged in the development of software for the purposes of development or testing of software for export and for the purposes of providing consultancy services for development of software "on-site" abroad subject to the conditions and the procedure specified by the said officer in this behalf; (iii) the capital goods or reject, waste or scrap material, if such goods are destroyed within the user industry in the presence of the central excise officer or out side the user industry, where it is not possible or permissible to destroy the same within the user industry: Provided that the remnants, remains or scrap after such destruction, if cleared into Domestic Tariff Area, applicable duty shall be levied on such goods: Explanation.-The consultancy fees receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2015. G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No.22/2003-Central Excise, dated the 31st March, 2003, published in the Gazette of India Extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R.265 (E), dated the 31st March, 2003, namely:- In the said notification,- (a) XX XX XX (b) in paragraph 3, for clause (iii), the following clause shall be substituted, namely:- "(iii) capital goods, raw material, consumables, spares, goods manufactured, processed or packaged, and scrap or waste or remnants or rejects are destroyed within the unit after intimation to Customs authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (3), in clause (d), in sub-clause (I), for items (i) and (ii), the following items shall be substituted, namely:- (i) in the case of capital goods, such goods are not proved to the satisfaction of the said officer to have been installed or otherwise used within the unit, within the period of validity of the Letter of Permission (LoP); (ii) in the case of goods other than capital goods, such goods as are not proved to the satisfaction of the said officer to have been used in connection with the production or packaging of goods for export out of India or cleared for home consumption within the period of validity of the Letter of Permission (LoP);"; (ii) for condition (8), the following condition shall be substituted, namely :- "(8) Subject to the satisfaction of the said officer, duty shall not be leviable in respect of capital goods, raw material, consumables, spares, goods manufactured, processed or packaged, and scrap or waste or remnants or rejects are destroyed within the unit after intimation to Customs authorities or destroyed outside the unit with permission of Customs authorities; Provided that this condition shall not apply in case of unit engaged in manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, accordingly, dismissed." Similarly, in Commissioner of Customs (Import), Mumbai (supra), dwelling on the question as to "What is the interpretative rule to be applied while interpreting a tax exemption provision/notification when there is ambiguity as to its applicability with reference to the entitlement of the assessee or the rate of tax to be applied?; their Lordships were pleased to hold: "53. After thoroughly examining the various precedents some of which were cited before us and after giving our anxious consideration, we would be more than justified to conclude and also compelled to hold that every taxing statute including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly. Further, in case of ambiguity in charging provisions, the benefit must necessarily go in favour of subject/assessee, but the same is not true for an exemption notification wherein the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. 66. To sum up, we answer the reference holding as under: 66.1 Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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