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TMI Blog2024 (6) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... as credit under rule 3 of CENVAT Credit Rules, 2004. HELD THAT:- That the impugned goods are excisable is not in dispute and yet the reviewing authority avers that these are exempted from duties of central excise and, therefore, bereft of option to pay duty on clearance. Doubtlessly, export promotion schemes in the Foreign Trade Policy (FTP) envisage exemption from duties on procurement and the advance licence/authorization scheme , too, is no exception though such exemption is limited to imported goods only and under Customs Act, 1962. There are no authority that empowers central excise formations to enforce notifications issued under Customs Act, 1962 in furtherance of such schemes. The flexibility afforded to holders of advance licence/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty between February 2008 and August 2011 to be used in the manufacture and export of 1,4 Dioxane and 1,3 Dioxlane in terms of obligation under advance licence/authorization scheme of the Foreign Trade Policy (FTP) entitling them to import of diethylene glycol without payment of duty but instead permitted by competent authority to be sourced domestically with the same privilege against letters of invalidation that, however, had not been availed of. In the impugned order the adjudicating authority held that credit was not to be denied merely for not having taken recourse to the privilege of using inputs that were not burdened with duties of central excise and that duty paid on clearance of diethylene glycol could be taken as credit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Belapur to appeal for reversing the impugned order on the ground that dismissal of appeal against decision of the Tribunal in re Shakun Polymers Ltd by the Hon ble High Court on monetary limit threshold did not constitute affirmation as binding precedent and that the issue remained in dispute owing to appeal before Hon ble High Court of Bombay against decision of the Tribunal, in Oleofine Organics (India) Pvt Ltd v. Commissioner of Central Excise, Thane-I [2013-TIOL-896-CESTAT-MUM], setting aside recovery in identical circumstances. It was also contended by the reviewing authority that it was not open to the assessee to procure duty paid inputs for manufacture of goods to be exported as obligation in a scheme of the Fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2001-CE (NT) dated 26th June 2001 specifies conditions and safeguards for clearance of excisable without payment of duty for use in manufacture of downstream products intended for export and, had the letters of invalidation been deployed, the supplier would have been afforded clearance without payment of duties of central excise. It is also not in dispute that this had not been pressed into service in the impugned transactions and impugned credit was taken by the respondent herein in accordance with rule 3 of CENVAT Credit Rules, 2004. 6. The first contention in the appeal is that exemption from duties on procurement of inputs, to be used in manufacture and export, available to holders operating under advance licence/authorization scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications issued under section 5A of Central Excise Act, 1944 and entailed upon which is the proviso to exclude option of non-availment. It would, thus, appear that the reviewing authority did misconstrue the source of exemption from duties of central excise as a notification to which said proviso is attached for mandatory availment that a notification under rule 19 of Central Excise Rules, 2001 does not. 7. The proposition in the appeal that the issue in dispute hangs in balance is no longer admissible as the appeal before the Hon ble High Court of Bombay challenging the decision of the Tribunal in re Oleofine Organics (India) Pvt Ltd stands dismissed and further appeal to the Hon ble Supreme Court was dismissed in limine. 8. With the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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