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TMI Blog2023 (3) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... x. dated 31.03.2003. During the year 2011, they intended to exit the EOU scheme. They obtained an 'in principle' exit permission from MEPZ, Chennai and then, worked out the duty incidence. The appellants, thus, remitted the duty on both imported goods as well as indigenously procured excisable goods and goods in the nature of finished and semi-finished goods produced and held as stock on the date of de-bonding of the unit. Subsequently, they submitted a letter to the Department along with work-sheet and payment details with a request to issue 'No Due' Certificate in the matter. After verification, 'No Due' Certificate was issued and subsequently, the Final Exit Order was issued to the appellants. 3. The appellants then filed refund claim on the ground that they had paid an excess amount of duty. The plea on the part of the appellants was that they are eligible to pay duty on the manufactured items only as per Sl. No. 2 of Notification No. 23/2003-C.E. dated 31.03.2003. It was thus contended that they are only liable to pay the duty on the manufactured items as per the above Notification at the rate of 50% of the Basic Customs Duty (BCD) to arrive at the aggregate dues. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 5% BCD as they have taken CENVAT Credit of the CVD (10%) and ACD (4%). Learned Counsel for the appellants argued that the excess 5% of the BCD paid by them is refundable irrespective of whether Sl. No. 2 of the Table provided in Notification No. 23/2003-C.E. is applicable or not. To support his contention, he relied upon the following decisions:- (i) C.G.S.T. & C.C.E., Trichy v. M/s. EID Parry India Ltd. [2018 (8) TMI 1494 - CESTAT Chennai]; (ii) M/s. Jubilant Life Sciences Ltd. v. C.C.E., Meerut [2018 (5) TMI 466 - CESTAT Allahabad]; (iii) M/s. Jubilant Life Sciences Ltd. v. C.C.E., Meerut-II [2014 (301) E.L.T. 649 (Tri. - Del.)]; and (iv) M/s. Fateh Granites Ltd. v. Commr. of C.Ex., Jaipur-II [2013-TIOL-2636-CESTAT-DEL] 4.3.1 He argued that, without prejudice to the submissions made above, Section 3 of the Central Excise Act, 1944 would itself make it clear that the appellants have paid excess duty. It can be seen that the proviso to Section 3(1) and Notification No. 23/2003-C.E. are applicable to those goods manufactured in an EOU and brought to any other place in India. "To be de-bonded goods" have to be considered as 'goods manufactured in an EOU and brought to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of Section 3 itself will not apply. 4.5 He prayed that since there is an excess payment due to the method of calculation insisted upon by the Department, the appellants may be granted the benefit of refund. It is also stated that the appellants had paid the amount only under protest. 5. Shri M. Ambe, Learned Authorized Representative for the respondent, supported the findings in the impugned order. It is submitted by the Department that the appellants have paid the duty in accordance with the provisions of law and that there is no excess payment for granting refund. He prayed that the appeals may be dismissed. 6. Heard both sides. 7. The issue to be decided is whether the appellants have made payment of excess duty and if so, whether they are eligible for refund. 8. The Learned Counsel for the appellants has stated that they have paid the duty as per Section 3(1) of the Central Excise Act, 1944 without taking the benefit of concessional rate of duty as per the proviso to Section 3(1). Being EOUs, the appellants are eligible to avail the benefit of Sl. No. 2 of Notification No. 23/2003-C.E. dated 31.03.2003 while paying duty. However, the Department was of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "7. On going through the provisions, of Appendix 14-I-L, we find that in terms of Note-(ii) to this Appendix, a 100% EOU must be continued to be treated as EOU/EHTP/STP unit till the date of final exit order. Based on this note, the Tribunal in the cases of Solitaire Machine Tools Pvt. Ltd. (supra) and Bajaj Foods Ltd. (supra) has held that a unit would continue to be treated as EOU unit till the date of final exit order and would be subject to monitoring of the stipulated obligations under the relevant schemes. The Tribunal in the case of Solitare Machine Tools P. Ltd. (supra) has held that the goods lying in stock at the time of debonding would be liable to duty only at point of time of removal of those goods from place of manufacture. In this case, admittedly, there was no removal of goods into DTA from EOU and before the final debonding order the goods had been exported out of India under advance authorization claim. In terms of para 6.18 (e) of the Foreign Trade Policy, while between the date of issue of no dues certificate by the Customs and Central Excise Authorities and the date of final debonding order by the Development Commissioner, the EOU unit shall not be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that there was no such allegation in the Show Cause Notice and therefore, the adjudication proceedings travelled beyond the Show Cause Notice and therefore confirmation of demand is not sustainable. We, therefore, set aside the impugned Order-in-Original and allow the appeal. The appellant shall be entitled for consequential benefit, as per law." 12. It is submitted that the Tribunal in the case of M/s. Fateh Granites Ltd. (supra) has taken a similar view. The relevant paragraph of the order is as below:- "4. As regards the verification of goods exported, learned advocate submits that they have placed on record entire evidence in the shape of stock register as also the other statutory records indicating that the goods manufactured by them even after debonding are exported by them. Such documents have not been examined and looked into by the lower authorities. For the said limited purpose, I set aside the impugned order and remand the matter to the adjudicating authority for verification of the documents maintained by the appellant and to find out as to whether the goods as available on the date of debonding were exported by the appellant. If that be so, the appellant would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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