TaxTMI 
TaxTMI 
2012 (10) TMI 582
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....istant Commissioner, Central Excise, Taloja Division, Belapur, Mumbai. 2. Brief facts of the cases are that the applicant are an 100% EOU and engaged in the manufacturing & export of pharmaceutical products falling under Chapter 30049099 of the Central Excise Tariff Act, 1985. They are availing the benefit of cenvat credit under Cenvat Credit Rules, 2004 and clearing the goods for export. The applicant has cleared certain export consignment on payment of duty under ARE No. 173/07-08, dated 21-1-08, 174/07-08, dated 24-1-2008 and 175/07-08, dated 24-1-2008 and later filed rebate claims for Rs. 20,70,513/- under Rule 18 of the Central Excise Rules, 2002. On scrutiny of the claim, it was noticed that the goods exported from a 100% EOU un....
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....3-2003. In any event the said exemption notification which exempt excisable goods produced or manufactured in a 100% EOU from the whole of duty of excise, does not prohibit the EOU from paying duty and availing cenvat credit and after exports applying for rebate. In fact, no duties are leviable on exports. At all material times, we had opted for paying duties and were entitled for rebate claim thereof on the admitted exports made by us. Retention of the duties so paid would amount to the department unjustly enriching itself. Thus, the conclusion drawn by the said Assistant Commissioner about the payment of duty on clearances under ARE-1 does not appear to be proper and correct. 4.2 The Assistant Commissioner in the impugned order-in-o....
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....Excise appeared for hearing on behalf of the applicant and reiterated the grounds of revision application. Nobody appeared on behalf of the respondent. 6. Government has considered written submissions of the applicant and also perused the orders passed by the lower authorities. 7. Government notes that this case matter involves a main and basic dispute that as to whether an 100% E.O.U. can pay the Central Excise Duty on the export goods and claim the rebate of duty paid on exported goods under Rule 18 of Central Excise Rules, 2002 keeping in view the provisions of Section 5A(1A) of Central Excise Act, 1944. 8. From perusal of records, Government observes that the applicant a 100% EOU exported certain consignments on paymen....
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....of : (a) excise leviable thereon under Section 3 of Central Excise Act, (b) additional duty of excise leviable thereon under Section 3 of Additional Duty of Excise (Goods of Special Importance) Act, 1957 and (c) Additional duty of excise leviable thereon under the Section 3 of Additional Duty of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) It may be noted that this notification does not require fulfilment of any condition for seeking the exemption in the matter of exports to any country. The exemption is absolute, unconditional without any string attached to it. 10. The only proviso to this Notification is that the exemption is not applicable ....
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....uch excisable goods shall not pay the duty of excise on such goods." 11. 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., dated 31-3-2003 issued under Section 5(A)(1) of Central Excise Act, 1944 granting unconditional exemption from whole of duty in this case. C.B.E.C. has also clarified vide letter F.No. 209/26/2009-CX., dated 23-4-2010 that Notification No. 24/2003-C.E., dated 13-3-2003 provides absolute exemption to the goods manufactured by EOU and therefore in terms of Section 5A(1A) of Central Excise Act, 1944, EOUs do not have an option to pay duty and thereafter claim rebate of duty paid. Similar view ....