2015 (11) TMI 1035 - AT - Central Excise

Tribunal grants exemption for intermediate goods in deemed export projects under Notification No. 44/2001-CE

M/s Techfab India Industries Limited Versus Commissioner of Central Excise-Daman

The Tribunal held that the appellants were eligible for the exemption under Notification No. 44/2001-CE (NT) for intermediate goods used in deemed export ... Denial of benefit of export in case of Deemed export - Notification No. 44/2001-CE (NT) dated 26.06.2001 - Revenue contended that the opening paragraph of the notification provides that the said notification would apply only on the physical export of the goods, out of India and not deemed export - Held that:- Under the Central Excise Scheme, Rule 18 and Rule 19 of Rules are dealing with export of the goods. Rule 18 provides any goods are exported, the Central Government granted rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods. Rule 19 allowed to export any excisable goods without payment of duty. Sub Rule (2) of Rule 19 permitted to clear the any materials from a factory without payment of duty for use in the manufacture or processing of the export goods. Sub Rule (3) of Rule 19 empowered the Board to frame the conditions, safeguards and procedure to clear the excisable goods for export and any materials cleared without payment of duty for use in the manufacture of export goods. Language of the proviso is clear and there is no ambiguity. The manufacturer of Advance Licence holder supplies the material to another manufacturer, who in turn supplied the resultant products to the ICB would be covered within scope of the notification. In our considered view, it is not justified to ignore the plain meaning of the proviso and interpret in such a manner, as it would render inconsistency with and meaningless of the notification. - by Notification No. 108/95-CE, the final product of the appellant is exempted from duty supplied to Assam Integrated Flood and Riverbank Erosion Risk Management Programme, which will be a deemed export as per Para 8.1 of Foreign Trade Policy. Revenue is demanding duty on the intermediate goods used in the manufacture of finished goods cleared as per Para 8.1 of policy, by denying the benefit of notification No. 44/2001-CE (NT) dated 26.06.2001 as amended. After amendment of the said Notification No. 44/2001-CE (NT) by Notification No. 23/2009-CE (NT) dated 22.09.2009, it has extended the removal of intermediate goods without payment of duty, for manufacture and export in terms of Para 8.3 (C) of policy, otherwise, the proviso inserted therein by amending notification would be nugatory and meaningless. Notification No. 44/2001-CE (NT), in this case, is issued in exercise of prior Rule 19 of the Rules. Rule 19 of the Central Excise Rules permitted to export the goods without payment of duty. Sub Rule (2) of Rule 19 further permitted to removal any material without payment of duty for use in the manufacture of goods, which are exported. Central Board of Excise and Customs by virtue of power under Sub Rule (3) of Rule 19 of the said Rules framed the procedure, conditions and safeguards for removal of the goods from the factory without payment of duty for used in the exported goods. As per Clause No. (ii) of the notification, the Central Government notified to follow the procedure of Rules 2001 for removal of intermediate goods for manufacture and except of goods by holder of DEEC and Advance License. Proviso to the said notification have wider amplitude, to extend the goods cleared by on Advance Licence holder to another Advance Licence holder for use in the manufacture of export of goods to ICB, by following the procedure laid down therein. - demand of duty alongwith interest and penalty cannot be sustained. Accordingly, the impugned order is set-aside. - Decided in favour of assessee. Issues Involved:1. Eligibility for exemption under Notification No. 44/2001-CE (NT) for intermediate goods.2. Interpretation of the proviso to Notification No. 44/2001-CE (NT).3. Compliance with the conditions of Rule 19 of the Central Excise Rules, 2001.4. Applicability of deemed export provisions under the Foreign Trade Policy.Issue-Wise Detailed Analysis:1. Eligibility for exemption under Notification No. 44/2001-CE (NT) for intermediate goods:The appellants were engaged in manufacturing excisable goods and had procured intermediate goods without payment of duty under Notification No. 44/2001-CE (NT) for use in final products supplied to a deemed export project. The Revenue issued a Show Cause Notice proposing to deny the benefit of the exemption on the grounds that the resultant products were not physically exported out of India, thus allegedly failing to meet the conditions of the notification.2. Interpretation of the proviso to Notification No. 44/2001-CE (NT):The appellants argued that they followed the procedure laid down in Notification No. 44/2001-CE (NT) read with Para 8.3 of the Foreign Trade Policy, which covers deemed exports. The proviso to the notification was intended to be read harmoniously with the main paragraph, allowing supplies between Advance Authorization holders for deemed exports. The Revenue contended that the notification applied only to physical exports and not deemed exports, asserting that the proviso could not extend beyond the main paragraph's scope.3. Compliance with the conditions of Rule 19 of the Central Excise Rules, 2001:Rule 19 allows the removal of excisable goods without payment of duty for export purposes. The appellants complied with the conditions, safeguards, and procedures specified under Rule 19 for removing intermediate goods without payment of duty for use in manufacturing resultant products for deemed exports. The Revenue argued that the intermediate goods were not exempted under Section 5A of the Central Excise Act, 1944, and thus the appellants violated the conditions of the Rules.4. Applicability of deemed export provisions under the Foreign Trade Policy:The appellants supplied final products to a project under international competitive bidding, qualifying as deemed exports under Para 8.3(C) of the Foreign Trade Policy. The policy provides benefits, including exemption from terminal excise duty for supplies made by an Advance Authorization holder to another Advance Authorization holder, who in turn supplies the resultant products to an ultimate exporter. The appellants' actions were consistent with these provisions, and they submitted the necessary certificates to avail the exemption.Judgment Analysis:The Tribunal found that the appellants were eligible for the exemption under Notification No. 44/2001-CE (NT) as amended, considering the proviso's clear language and the policy's intent to cover deemed exports. The Tribunal rejected the Revenue's narrow interpretation and emphasized a harmonious reading of the proviso with the notification's main paragraph. The appellants followed the required procedures and conditions under Rule 19 and the Foreign Trade Policy, making them entitled to the exemption. The Tribunal set aside the demand for duty, interest, and penalty, allowing the appeal filed by the appellants.Conclusion:The judgment clarified that the proviso to Notification No. 44/2001-CE (NT) extends to deemed exports, allowing supplies between Advance Authorization holders for deemed export projects. The appellants' compliance with the procedural requirements under Rule 19 and the Foreign Trade Policy entitled them to the exemption, and the Tribunal's decision reinforced the need for a liberal interpretation of beneficial notifications. The appeal was allowed, and the impugned order was set aside.