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TMI Blog2020 (3) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.25/2005-Cus. dated 01.03.2005. 2. After import, the Appellant cuts these cables to required lengths and connectors were affixed at both ends. Doubting the eligibility of the benefit under Sl.No.28 of the Notification No.25/2005-Cus, investigations were initiated by the department and Show Cause Notice dated 04.03.2014 was issued to the Appellant denying the exemption under Sl.No.28 of the Notification No.25/2005-Cus on the following grounds : a. The cables could be used at an operating voltage of above 80V b. The cables have been misdeclared as operating voltage less than80 volts to avail the exemption under the Notification No.25/2005-Cus c. If the application voltage of the cables were to be criteria, there would be no n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of Indian Chamber of Commerce Vs CIT (1976) 1 SCC 324 to argue that the word 'of' connotes "the end with reference to which anything is done". Under Sl.No.28, the exemption is available for cables which are used in less than 80 volts equipments. 5. Alternatively, the Ld. Counsel submitted that the appellant would be eligible for the exemption under Sl.No.33 of the same notification. For the subsequent period, the appellant had claimed exemption under Sl.No.33 and the department allowed the same. Further, in the appellant's own case vide Final Order No.41901/2018 dt.2.7.2018, the Tribunal after considering the appellant's plea with regard to exemption under sl.No.28 as well as Sl.No.33 had allowed the elig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant has claimed the benefit under Sl.No.33 of as an alternative claim and could not be expected to have fulfilled the condition under 1996 Rules. Therefore, the said decision of the Hon'ble jurisdictional High Court in Medreich Sterilab Ltd. (supra) though has adverted to the 1996 Rules would not be applicable to the facts of the appellant's case. It is submitted by him that the decision in Formica India Division (supra) would be squarely applicable. The procedures has not been followed by the appellant since they claimed exemption under Sl.No.28. Since the products manufactured fall under Sl.No.29, they are eligible for benefit of exemption under Sl.No.33 since the request for this exemption has been subsequently raised, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder entry at Sl.No.28. Further, we also have it on record from the Ld. Advocate, during the course of hearing, that the appellants subsequent to the dispute, have been importing the same goods with benefit of Sl.No.33 of the Notification without any controversy. It is also seen that the appellants vide a letter addressed to the Commissioner of Central Excise dt.22.4.2010, i.e. even before the issue of SCN on 1.6.2010, had conveyed their intention to avail exemption under Sl.No.33 of the Notification for future exports. We then find that appellant is correct in their reliance on the law as laid down by the Hon'ble Apex Court in Formica India Division Vs CCE - 1995 (77) ELT 511 (SC) which held that exemption cannot be denied on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal that the appellants should be permitted to meet the requirements of Rule 56A of the Central Excise Rules and, therefore, they cannot be permitted to avail of that benefit in a Writ Petition brought under Article 226 of the Constitution. That indeed was a technical view to take because if the appellants were entitled to the benefit of the Notification No. 71/71-C.E., dated 29th May, 1971, to deny that benefit on the technical ground of non-compliance with Rule 56A would tantamount to permitting recovery of double duty on the intermediary product. The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to captive consumption for producing that stage, the appellants conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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