TaxTMI 
TaxTMI 
2013 (7) TMI 156
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....thority. The adjudicating authority observed that supply of the goods to SEZ notified under sub-section (1) of Section 4 of the Special Economic Zone Act, 2005 is treated as export, as envisaged under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, and sanctioned the rebate claims filed by the assessee. 3. Being aggrieved by the above rebate orders, the department filed appeal before the Commissioner (Appeals) on the grounds that as per condition (h) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 as amended by Notification No. 37/2007-C.E. (N.T.), dated 17-9-2007, the rebate shall not be admissible to the units availing the benefit of Notification No. 39/2001-C.E., dated 31-7-2001. The Commissioner (Appeals) vide impugned order-in-appeal has rejected the appeal filed by the department and upheld the impugned order-in-original. 4. Being aggrieved by the impugned orders-in-appeal, the applicant department has filed these revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 It appears that the Appellate Authority while passing the Appellate Order has not properly appreciated the condition ....
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....ber reported in 2001 (133) E.L.T. 515 (S.C.) has held that an exemption notification cannot be unduly stretched to produce unintended results in derogation of the plain language employed therein. Also, the Hon'ble Supreme Court in the case of CCE v. Mahaan Dairies reported in 2004 (166) E.L.T. 23(S.C.) has categorically held that- "8. It is settled law that in order to claim benefit of a notification a party must strictly comply with the terms of the Notification. If on wordings of the Notification the benefit is not available then by stretching the words of the Notification or by adding words to the Notification benefit cannot be conferred." In view of the above settled legal position when from the plain reading of the condition 2(h) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 supra it transpires that a manufacturer availing benefit of Notification No. 39/2001-C.E., dated 31-7-2001 cannot claim rebate on export of goods under any circumstances, Appellate Order allowing the rebate under the said notification to the assessee who is availing benefit of Notification No. 39/2001-C.E., dated 31-7-2001, appears to be illegal and hence, required to be set aside forthwith....
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....refore in the present case, since the goods so exported have not availed any exemption under the Notification 39/2001-C.E. therefore the rebate so granted on those goods in question are in compliance with the provision/conditions of the Notification 19/2004-C.E. (N.T.), dated 6-9-2004 issued under Rule 18 of the Central Excise Rules, 2002 and accordingly the same have not been required to be interfered. 5.3 Since the rebate on goods cannot be denied on the basis of a mere clarification, therefore the C.B.E. & C. had issued Notification 37/2007-C.E., dated 17-9-2007 on the basis of the clarification so issued. Accordingly, it can be say and submit that the basic intention of the government was to prevent the manufacturer availing the benefit of the exemption under Notification 39/2001-C.E. from rebate of duty since the said duty had already been refunded. Since in the present case, the respondent had not availed any refund by way of exemption under the Notification No. 39/2001-C.E. and the respondent had also maintained separate records showing the production and clearance of goods manufactured from machinery installed before and after 31-12-2005 respectively, and it was also agr....
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....Accordingly the condition (h) of the Notification 19/2004-C.E. (N.T.) is not applicable to the present case. 5.6 The Notification 37/2007-C.E. (N.T.) dated 14-9-2007 was issued for amending the Notification 19/2004-C.E. (N.T.) to insert the condition (h) above mentioned. The said Notification 37/2007-C.E. was issued for giving the legality for the clarification dated 8-12-2006 wherein it was clarified with consultation of Law Ministry that the term 'duty paid' used in Rule 18 is not included that portion of duty which is subsequently refunded to manufacturer by way of exemption under Notification 39/2001-C.E. Therefore the basic intention of the Board while issuing the Notification 37/2007-C.E. (N.T.) was to debar the rebate of duty on those goods on which refund was available under Notification 39/2001-C.E. Therefore it can be said and submit that when the goods are eligible for the refund of duty paid under the exemption Notification No. 39/2001-C.E. then the rebate shall not be allowed on that portion of duty paid on the goods so exported. 5.7 The exemption notification is to be construed keeping in view the object and purpose of the exemption. It was held in plethora of c....
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....otification No. 19/2004-C.E. (N.T.), dated 6-9-2004 may be perused which are extracted as under :- "(h) that in case of export of goods which are manufactured by a manufacturer availing the notifications of the Government of India in the Ministry of Finance (Department of Revenue) No. 32/99-C.E., dated 8th July, 1999 [GSR 508(E), dated 8th July, 1999] or No. 33/99-C.E., dated 8th July, 1999 [GSR 509(E) dated the 8th July, 1999] or No. 39/2001-C.E., dated the 31st July, 2001 [GSR 565(E), dated the 31st July, 2001] or notification the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 56/2002-C.E., dated 14th November, 2002 [GSR 764(E), dated 14th November, 2002] or No. 57/2002-C.E., dated the 14th November, 2002 [GSR 765(E), dated the 14th November, 2002] or notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 56/2003-C.E., dated the 25th June 2003 [GSR 513(E), dated the 25th June, 2003] or 71/2003-C.E., dated the 9th September 2003 [GSR 717(E), dated the 9th September 2003] or No. 20/2007-C.E., dated the 25th April, 2007 [GSR 307(E), dated the 25th April, 2007], the rebate shall not b....
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.... that where a unit introduces a new product by installing fresh plant, machinery or capital goods after the cut off date. In such a situation, exemption would not be available to this new product. The said new product would be cleared on payment of duty, as applicable and separate records would be required to be maintained to distinguish production of these products from the products which are eligible for exemption. The other situation is the one where a unit starts producing some products (after the cut off date) using the plant and machinery installed upto the cut off date and without any addition to the plant and machinery. For example, in case of plastic moulded products a unit may commence the production of different products simply by changing the moulds and dies. In that case the unit would be eligible for the benefit of Notification because the plant and machinery used for manufacture has remained the same. In this connection, it is further clarified that for the purpose of computing the original value of plant and machinery, the value of plant and machinery installed on the date of commencement of commercial production only shall be considered. Government notes that....