2009 (2) TMI 644

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..... cotton yarn falling under CSH No. 5205.11 of CETA, 1985, was functioning as EOU and was clearing the excisable goods manufactured into DTA on payment of duty as per 1st proviso to Section 3(1) of the Central Excise Act, 1944 (i.e. equal to the aggregate duties of customs which would be leviable under the Customs Act, 1962 or any other law for the time being in force, on like goods produced or manufactured outside of India and if imported into India) read with exemption Notification and Foreign Trade Policy; that since the appellant had to pay duty on the goods to be cleared into DTA prior to their removal from 100% EOU, the appellant maintained PLA and deposited amounts under various heads in advance to facilitate DTA clearances; that the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ted in advance in his PLA, the provisions of Section 11B are not at all applicable to the said refund claim and the same is bound to be sanctioned to them in view of the Tribunal's decision in the case of Eastern Agency v. CCE [1999 (106) E.L.T. 463]; (ii)    that but the Assistant Commissioner refused to follow the ratio laid down in the said decision stating that the mater referred therein is with reference to the customs provisions and cannot be considered as applicable in the Central Excise provisions; (iii)   that in the said case also, the assessee (the appellant) has also claimed the refund of amount deposited in advance and the department has rejected same holding that the same is time barred under Sec....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....for payment of duties on their excisable goods in DTA has to be treated as duties of excise only. 3. PH was held on 5-2-2009 at 04.45 PM. Shri V.B. Gaikawad, Advocate, duly authorized by the appellant appeared before me. None appeared from department's side despite intimation. During the hearing, the Advocate reiterated the submissions made in the appeal memorandum. 4. I have gone through the case records including the record of PH and decisions relied upon by the appellant/Advocate. The undisputed fact in this case is that the appellant started availing full exemption from payment of Central Excise duty in terms of Notification No. 30/2004, dated 9-7-2004 and therefore, there is no possibility of utilizing the amount lying ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ue or not which itself shows that he has pre-determined to reject the refund claim of the appellant. 4.2 In view of the above discussion and in view of the following decisions, the amount of Rs. 43,055/- should be considered as 'deposit' and also in view of the Board's Circular No. 275/B7/2000 CX.8A dated 2-1-2002, the amount should have been paid back and there need not be any elaborate procedure to be followed for claiming refund. (a) Eastern Agency v. CCE, Calcutta [1999 (106) E.L.T. 463 (T)] "Refund - Customs duty paid by appellant in anticipation of export of goods - Goods not having been exported, question of export duty not arises - Section 27 of Customs Act, 1962 inapplicable", (b) CCE, Mumbai-V v. Atul Industries [200....