TaxTMI 
TaxTMI 
2013 (7) TMI 302
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....y of CETA, 1985. They had cleared the abovesaid finished products for export. 2.1 They had exported the finished goods on payment of duty under claim for rebate. Accordingly, they had filed 21 rebate claims for a sum of Rs. 98,09,804/- on the goods exported from their factory premises under Rule 18 of Central Excise Rules, 2002. The duty had been discharged from their Cenvat account on inputs and service tax lying in their account for the goods exported under claim for rebate. They had claimed the rebate claim referring Board's Circular F.No. 137/82/2007-CX.4(pt.) said to have been duly supported by the Bangalore Public Notice No. 74/2007, dated 13-11-2007. Verification and scrutiny of the rebate claims, it was noticed that they are not eligible for the rebate because the goods manufactured in 100% EOUs are fully and unconditionally exempted from payment of duty vide Notification No. 24/2003-C.E., dated 31-3-2003 and therefore the duty paid on the goods exported on their volition is not in accordance with law. Hence any amount debited as duty in their Cenvat Credit Account does not attain the status of duty since there is no levy of duty as far as EOUs are concerned. Further ....
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....t the goods manufactured and cleared vide Notification No. 24/2003-C.E., dated 31-3-2003 cannot be equated with NIL rate of duty or exempted. 4.3 In the applicants' own case, reported in 2009 (236) E.L.T. 110 (Tri.-Chennai), the Hon'ble Tribunal in paragraph 6 has held that "we find that the Central Excise Rules did not contain any bar on an EOU taking credit of duty paid on inputs received during the material time and utilize the credit for payment of duty on DTA clearances or for export". As per the above decision of Hon'ble Tribunal, the applicants has utilized the Cenvat credit for payment of duty for exports and claimed rebate. It is also to be noted that the department has not made any appeal against the said decision of the Tribunal leading to suggest that the issue has reached the finality. 4.4 It is settled law that the exemption under Notification No. 24/2003-C.E. is not an absolute exemption and because of this reasons Cenvat credit has been allowed to the EOUs. The conclusion is supported by the decisions rendered in the case of Medispan Ltd v. CCE, Chennai, reported in 2004 (178) E.L.T. 848 (Tribunal-Chennai) and in the case of Norris Medicines Ltd. v. CCE,....
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....ods on payment of duty under claim of rebate under Rule 18 of CER, 2002. The adjudicating authority rejected all the claims on the grounds that applicant being 100% EOU enjoyed unconditional exemption under Not. No. 24/2003-C.E., dated 31-3-2003 and had no option to pay duty of goods (cleared for export) in terms of provisions of Section 5A(1A) of CEA, 1944. In appeal, Commissioner (Appeals) upheld the impugned order-in-original dated 13-8-2010. Now, applicant has filed this revision application on the grounds stated in para 4 above. 8. Government finds it proper to go through relevant legal provision which are extracted below : 8.1 Notification No. 24/2003-C.E., dated 31-3-2003 states as follows - "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 Government, being satisfied that it is necessary in the public interest so to do, hereby; (a)  ....
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....Ltd. v. CCE reported as 2004 (171) E.L.T. 433 (S.C.), and M/s. Paper Products v. CCE reported as 1999 (112) E.L.T. 765 (S.C.) that the simple and plain meaning of the wordings of statute are to be strictly adhered to. C.B.E. & C. has also clarified vide letter F.No. 209/26/2009-CX.-6, dated 23-4-2010 (para 2) as under :- "The matter has been examined, Notification No. 24/2003-C.E., dated 13-3-2003 provides absolute exemption to the goods manufactured by EOU. Therefore, in terms of Section 5A(1A) of the Central Excise Act, 1944. EOUs do not have an option to pay duty and thereafter claim rebate of duty paid." 9. Government notes that applicant has cited some case laws which pertain to issue of refund of Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004. The said case laws cannot be made applicable to the present case since all the issue involved is regarding admissibility of rebate claim to 100% EOU. As regards the case law in the case of GTN Enterprises v. CCE, Coimbatore reported in 2009 (236) E.L.T. 110 (Tri.) cited and relied upon by the applicants is distinguishable as the issue involved in the said case is about eligibility of availment of credit of duty paid on t....