TaxTMI 
TaxTMI 
2012 (11) TMI 1065
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....d filed original and duplicate copies of ARE-I No. 298/2007-08, dated 13-3-2008, Shipping Bill No. 1826435, dated 11-3-2008, Bill of Lading No. APLU054826573 and Bank Certificate of Export and Realization dated 12-5-2008 (Self Attested copies), in support of their aforesaid claim of rebate. During the course of scrutiny of the said rebate claim in context to final debonding of the unit, it has been observed that : i. In terms of Para 6.18 of the Foreign Trade Policy 2004-2009, a unit would be treated as debonded only after the issuance of Final De-bonding order by the jurisdictional Development Commissioner, In the instant case, since the Final De-bonding Order issued from F.No. 04-211/94-100%EOU/2209, cancelling the LOP dated 23-11-1994 and the Green Card No. 227 with effect from the date or order which has been issued by the Assistant Development Commissioner, NOIDA Special Economic Zone, NOIDA, on 31-3-2008, therefore the unit attained De-bonded status w.e.f. 31-3-2008 only. Consequently any clearance made prior to this date would be deemed to have been made under 100% EOU Scheme and not as a DTA unit. ii. ....
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....licants discharged all the Customs and Central Excise duties vide TR6 challans dated 4-3-2008. In terms of the Para 6.18 of the Foreign Trade Policy, for conversion purposes one of the first and foremost requirement to be fulfilled is to pay all the Customs and Central Excise duties and obtain a "No Dues Certificate" from the Excise department. In the present case, the applicants discharged all Customs and Central Excise duties on 4-3-2008 and applied for "No Dues Certificate" from the departmental authorities. Once payment has been made by the applicants, issuance of "No Dues Certificate" by the department is only a procedural formality. 4.1.3 The policy provides that the issue of "Final Debonding Certificare" will be within seven working days after the issue of "No Dues Certificate" by the Customs and Central Excise authorities. The language employed in the provision makes it clear that once the duties have been paid, the unit has to be treated as "debonded". The language reads thus, on the basis of "No Dues Certificate" so issued by the Customs and Central Excise authorities, unit shall apply to DC for final debonding. 4.1.4 The above submission further gets fortifie....
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...., duties leviable under AED GSI Act and duties leviable under AED TTA Act. The notification applies only to 100% EOU and not a general absolute exemption. Further, this notification itself provides that exemption shall not apply to goods brought to any other place in India, which indicates that if the 100% EOU clears the goods under its DTA entitlement granted by the Development Commissioner, then such exemption is not available. Thus, the first condition to the Notification carries that the unit should be 100% EOU. Secondly, the clearance should be for exports. The exemption applies to duty chargeable under Section 3 of the Central Excise Act, 1944 and other charging provisions under AED GSI Act and AED TTA Act. Therefore, the exemption conferred under Notification No. 24/2003-C.E. is not an absolute exemption as has been observed by the ld. Commissioner (Appeals) in the impugned order. 4.2.3 The applicants further submit that without prejudice to the above submissions, assuming that the Notification No. 24/2003-C.E. grants absolute exemption to goods, even then the provisions do not apply since the moment the applicants discharged all the customs and Central Excise duties, ....
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....of Haryana - (1976) 38 STC 108 (S.C.) * Commissioner of Sales Tax, J&K & Others v. Pine Chemicals Ltd. and Others reported in (1995) 96 STC 355 (S.C.) * CCE, Vadodara v. Paushak Ltd. - 2005 (187) E.L.T. 249 * UOI v. Paliwal Electricals P. Ltd. reported in 1996 (83) E.L.T. 241 (S.C.) * CCE v. Jalyan Udyog - 1993 (68) E.L.T. 9 (S.C.) * Murli Agro Products v. CCE, Nagpur - 2005 (183) E.L.T. 277 * CCE, Guntur v. Binny Ltd. - 1987 (31) E.L.T. 722 * Alpha Garments v. CCE, New Delhi - 1996 (86) E.L.T. 600 * IOC Ltd. v. CCE, Calcutta-II - 2004 (178) E.L.T. 834 * Mafatlal Industries Ltd. - 1997 (89) E.L.T. 247 (S.C.). 5. The respondent department vide their letter dated 15-11-2011 submitted the cross-objection on the grounds of revision application. They mainly pleaded that : 5.1 The contention of the appellant that the date of payment of Customs and C....
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....icy has been interpreted by the department where it is clearly laid down that the date of debonding would be the date when Development Commissioner issues final debonding order. 5.5 The contention of the appellant that the exemption conferred under Notification No. 24/2003-C.E. is not an absolute exemption is not acceptable because the said Notification in clear terms exempts duty on the goods manufactured and cleared from EOU for export. Further, even if the duty is chargeable in the cases when the goods cleared to DTA, it does not mean that the Notification is conditional. Because the Notification No. 24/2003-C.E., dated 31-3-2003 absolutely/unconditionally exempt the goods manufactured and cleared from the EOU for export. Therefore, being 100% EOU the appellant had no discretion to pay duty on export clearance and thereby they were not entitled to rebate in terms of the Notification No. 24/2003-C.E., dated 31-3-2003 read with Section 5A(1A) of the Central Excise Act, 1944. 5.6 The reliance placed by the appellant on the decision of the Indian Aluminium Cables Ltd. & Another v. State of Harayana, (1976) 38 STC 108 (S.C.) is not applicable to the facts of this case bec....
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....ing their status as DTA Unit w.e.f. 4-3-2008 when they had discharged all the Customs & Central Excise duties for conversion of their 100% EOU Unit to DTA Unit. The adjudicating authority rejected the claim on the ground that final debonding was effective from 31-3-2008 and therefore till 31-3-2008 applicant being 100% EOU was not required to pay duty as there was an absolute exemption from payment of duty under Notification No. 24/2003-C.E., dated 31-3-2003 and hence rebate of such duty payment was not admissible. In appeal, Commissioner (Appeals) upheld the impugned order-in- original. Now applicants have filed this revision application on the ground stated in Para 4 above. 9. The Government observes that applicants were a 100% EOU and applied for debonding. They had paid Central Excise duties and Customs duties on 4-3-2008 for debonding from their 100% EOU status. The Assistant Commissioner, Central Excise Division, Alwar issued a "No dues certificate" on 18-3-2008 and subsequently the Development Commissioner NOIDA SEZ; NOIDA issued final debonding order on 31-3-2008 which was effective from the date of issue itself in terms of Para 6.18(e) of the Foreign Trade Policy 200....
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....on under section 3 of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) : "Provided that the exemption contained in this Notification in respect of duty of excise leviable under section 3 of said Central Excise Act shall not apply to such goods if brought to any other place in India;" 9.3 Sub-section (1A) of Section 5A of the Central Excise Act, 1944 states as follows : "(1A) For the 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." 9.4 As per Para 6.18 of FTP 2004-09 it is clearly mandated that after deposit of duties and obtaining 'No Dues Certificate' the unit would apply to Development Commissioner for final debonding and thereafter the Development Commissioner shall issue the final debonding order. As per Para 6.18 of FTP 2004-09 the unit got debonded on 31-3-2008 vide Development Commissioner (SEZ) final debonding order No. 4-211/94-100% EOU/2009, dated 31-3-2008. Applicant has also declared....