TaxTMI 
TaxTMI 
2002 (11) TMI 3
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....e Department of Central Excise is whether the unit or factory established by the company in Export Promotion Industrial Park [hereinafter referred to as EPIP] at Amingaon in North-Eastern State of Assam can claim the status of a 'new industrial unit' within the meaning of sub-clause (a) of clause 3 of the Exemption Notification dated 8-7-1999. It is not in dispute that all other conditions of the notification for claiming exemption from payment of duty are fulfilled and the company would be entitled to avail the benefit of the Exemption Notification, if the unit set up by it at Amingaon, answers the description of 'new industrial unit'. The CEGAT by dismissing the appeals of the Department of Central Excise has held that the respondent/company is entitled to claim exemption from payment of duty under the Exemption Notification and on that basis entitled to adjustment of duty already paid on the cigarettes manufactured in its factory and is also entitled to refund of duty for the period covered by the notification. The facts not in disputes are as under :- The respondent/company was granted industrial licence No. CIL : 128(75), dated 1-5-1975 for setting up cigarette manufactu....
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....aon will be decided on merits as per the prescribed procedure. It is on these undisputed facts that the learned Counsel appearing for the Department of Central Excise very strenuously urged that the industrial unit set up by the company at the Export Promotion Industrial Park, Amingaon, cannot claim the status of a 'new industrial unit' within the meaning and intent of the Exemption Notification dated 8-7-1999. It is submitted that the contents of the application for grant of industrial licence made by the company itself show that the company sought change of location of its industrial unit at Bangagarh to Amingaon and therefore, the unit at Amingaon is not a new unit. Learned Counsel appearing for the Department argued that the Exemption Notification does not define the expression 'new industrial unit' and therefore, it has to be understood on the basis of provisions of the industrial law and particularly the Industries (Development & Regulation) Act, the provision contained in Section 11 of which requires for obtaining of a licence or permission in the prescribed manner and form for setting up a new industrial undertaking. For the aforesaid reasons, on behalf of the Department....
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....enefit of the Exemption Notification. The relevant part of the Exemption Notification, contained in Clause 3 reads as under :- "In exercise of the power conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 to 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 exempts the goods specified in the first schedule and the second schedule to the Central Excise Tariff Act, 1985 (1 of 1986) and cleared from unit located in the Growth Centre or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate, as the case may be specified in Annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account curr....
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....a dealer already having an industrial unit manufacturing the same goods at any other place in the State or adjacent site' but excluded "any factory or workshop using machinery, accessories or components already used or acquired for use in any other factory or workshop in India". In the present case, no such definition or explanation is to be found in the notification and there is no material to establish that the same machinery, accessories or components used by the company in its unit at Bangagarh have been shifted for its unit at Amingaon, Guwahati. In the case of Shri Bakul Oil Industries v. State of Gujarat (1987 (27) E.L.T. 572 (S.C.)) [1987 (1) SCC 31], the notification for exemption from sales tax under consideration was issued under the provisions of Gujarat Sales Tax Act and in the notification 'new industry' was defined to mean and include an industry commissioned during the period 1st April, 1970 to 31st March, 1975 but the exclusion clause clearly read as : "but shall not include such industrial undertaking established by transferring or shifting or dismantling an existing industrial unit". In the case before us, the Exemption Notification does not define 'new ind....