TaxTMI 
TaxTMI 
2012 (9) TMI 305
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.... were issued on the grounds that payment of duty by the Applicant was not required in view of the full exemption provided to EOUs/EHTPs under Notification No. 24/03-C.E., dated 31-3-2003. The payment of duty through CENVAT account was not viewed as duty under Section 3 of the Central Excise Act, 1944. the contention of the department was that as no tax can be collected without the authority of law, there would be no question of sanction of rebate claim of the amount debited in the CENVAT account in respect of goods exported by 100% EOU/EHTP units. The adjudicating authority rejected the impugned rebate claims. 3. Being aggrieved with the order of the Adjudicating Authority, the Applicant party filed the appeal before Commissioner (Appeal) who after due consideration of the fact as mentioned therein rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant, party has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following main grounds of case as A and Supplementary grounds as B below :- A.4.1 Notwithstanding and without prejudice to the submissions made hereunder, it is s....
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..... This view is further substantiated by the provisions of Notification No. 19/2004 wherein, only those cases listed under para 2(h) are excluded from the scope of Rule 18. The excluded list does not contain goods manufactured by EOUs/EHTPs/STPs. A.4.7 We now turn to the provisions of Cenvat Credit Rule 5 and the Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 issued thereunder, which provide for refund of accumulated Cenvat Credit which cannot be utilized either for payment of duty on goods cleared for home consumption or cleared under claim for rebate of duty for export. Going by the Revenue's own stand, the Applicants would become otherwise eligible for refund of the amount involved in exports made under claim for rebate. The said rule provides for refund of the accumulated credit subject to the condition that no other benefits like Duty Drawback and claim for rebate are availed. Therefore, the Applicants were always eligible for refund under the alternate remedy provided by the said rule. The above condition clearly provides for the option of rebate of duty, which in the present case, the Applicants preferred. B.4.1 That lower authority has no power to re-asses....
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....Hon'ble Tribunal has ruled that we find that the said Section 5A(1) is to the effect that where the goods are unconditionally exempted, as assessee has no choice to pay duty on the same. However, in the present case the goods attracted same rate of duty and were not exempted unconditionally. Strictly speaking, the said rule would not apply. B.4.6 The Applicants submit that if they are willing to avail the exemption under Notification No. 24/2003-C.E., dated 31-3-2003 they have to clear the goods in terms of Rule 19 of Central Excise Rules, 2002 and the Applicants are forced to cleared the goods in terms of Rule 19 of Central Excise Rules, 2002 instead of exemption provided under Notification No. 24/2003-C.E., dated 31-3-2003 then he is also eligible to the clear the goods in terms of Rule 18 of the Central Excise Rules, 2002. In support of their view the Applicants wish to refer and rely on the decision of Hon'ble Supreme Court in case of Hindustan Petroleum Corpn. v. CCE [1995 (77) E.L.T. 256 (S.C.) the Hon'ble Supreme Court had observed that export of goods under Rule 13 (Parallel to Rule 19) is permissible only when rebate under Rule 12 (parallel to Rule 18) is admissible.....
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....ch is required to export entire production of goods & services except the permissible sales in India. As such, the exemption from payment of duty in terms of Notification No. 24/2003-C.E., dated 31-3-2003 is applicable to EHTP Unit which is a Export Oriented Undertaking. 7. From perusal of records, Government observes that the applicant a EHTP Unit which exported certain consignments on payment of duty and filed rebate claims which were rejected by the lower authorities that as the applicant being EHTP Unit, a export oriented undertaking, are not required to pay duty as per provisions of Section 5A(1) of Central Excise Act, 1944 read with Notification No. 24/2003-C.E., dated 31-3-2003. 7.1 The Notification No. 24/2003-C.E., dated 31-3-2003 under which the applicant Unit was working, reads as under : "In exercise of the power conferred by sub-section (1) of Section 5A of Central Excise Act, 1944, (1 of 1944), read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Go....
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....ded that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured (i) in a free trade brought to any other place in India; Zone or a special economic zone and or by a hundred per (ii) brought to any place in cent export-oriented undertaking and India. Explanation: (1A) for removal of doubts, it is hereby declared that where an exemption under sub section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods." 7.3 Thus, the Government by taking the applicant's EHTP Unit as equivalent to an EOU and as per Explanation 1(A) to Section 5A of Central Excise Act, 1944, the manufacturer of such goods has no option to pay Central Excise Duty since Notification No. 24/2003-C.E.(N.T.), dated 31-3-2003 issued under Section 5A(1) of Central Excise Act, 1944 granting unconditional exemption from whole of duty in this case. This view has been supported by the citations quoted by the Commissioner (Appeals) in his impugned order-in-appeal. 7.4 The....