2010 (7) TMI 407

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....y to November '98. In the second appeal, the assessee challenges demand of duty of Rs. 42,204/- on vacuum cleaners supplied to the EOU during the period from February to May 1997. 2. The refund claim was made on the strength of Order-in-Appeal dated 30-10-1998 passed by the Commissioner (Appeals) granting the benefit of a notification to the assessee. The original authority had denied the benefit of the notification to the assessee. After the Order-in-Original was passed, the assessee, in a letter dated 21-9-97, informed the Assistant Commissioner that they would be clearing the machines to the EOU by claiming the benefit of Notification No. 1/95-C.E. but on payment of duty 'under protest' in view of the said Order-in-Original. In ....

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....itted that the goods, in question, had been cleared to the EOU under CT3 certificates issued by the Superintendent of Central Excise having jurisdiction over the EOU. It is submitted that these CT3 certificates had not been cancelled or revoked by the range officer and, therefore, the assessee was entitled to supply goods to the EOU without payment of duty. The learned Counsel for the appellant submits that the payment of duty 'under protest' was made under intimation to the department and that this 'protest' was never vacated. We have heard the learned JDR also, who has reiterated the findings of the Commissioner (Appeals). 3.After considering the submissions, we are in agreement with the view expressed by the learned Counsel. Order-in-....

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..... 4. Appeal E/1103/07 is against demand of duty of Rs. 42,204/- which was confirmed by the original authority in adjudication of the relevant show-cause notices and eventually confirmed by the Commissioner (Appeals). After hearing both sides, we find that the short question arising for consideration is whether the assessee was entitled to the benefit of Notification No. 1/95-C.E. ibid in respect of vacuum cleaners supplied by them to the EOU during February to May '97. The lower authorities took the view that these vacuum cleaners could not be considered to have been used for the manufacture of the final products (textile fabrics etc.) by the EOU and hence the benefit of exemption was not admissible to the assessee. Admittedly, the....