AI Drafter 
TaxTMI 
TaxTMI 
2016 (10) TMI 455
X X X X Extracts X X X X
X X X X Extracts X X X X
....the duty of NCCD cleared to 100% EOU. Both the lower authorities held against the appellant. 3. Learned Counsel would draw our attention to the facts and submit that the issue is no more res integra. An identical issue had been decided in this Tribunal in the case of Filatex India Ltd. Vs. CCE & ST 2014 (302) ELT 446 (Tri.-Ahmd.), J.B.F. Industries Ltd. Vs. CCE -2009 (246) ELT 286 (Tri.- Ahmd.) and M/s Chiripal Industries Ltd. Vs. Commissioner of Central Excise and Service Tax, Ahmedabad 2015-TIOL 1637-CESTAT-AHM, wherein it was held that NCCD on POY and cleared to 100% EOU are exempted under Notification No. 46/2003-CE dated 17.05.2003. 4. Learned departmental representative submits that the issue involved is regarding the exemption on NCCD. It is the submission that during the relevant period goods in question were cleared to 100% EOU and NCCD was claimed as exemption under Notification No. 22/2003-CE dated 31.03.2003 and NCCD was applicable on the goods cleared for captive consumption. That issue was decided in this Tribunal in the case of Hero Honda Motors Ltd. Vs. Commissioner of Central Excise, Meerut 2011 (273) ELT 89 (Tri.-Del.). It is his submission that notification....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... argued that NCCD is basically a duty of excise and Rule 19 of the Central Excise Rules provides for the removal of excisable goods without payment of duty for further use in the manufacture of export gods. It was thus his case that NCCD can not be demanded in respect of clearance of POY made to 100% EOU for goods which are ultimately exported. He relied upon the order NO. A/2094/WZB/AHD/2011 dated 10.06.2011 passed by this bench in the case of M/s. Modern Petrofils vs. CCE Vadodara (Appeal No. E/2748/2006) and argued that the present appeals are squarely covered by the latest law laid down by this bench. He also relied upon CBEC Circular No. 641/32/2002-CX dated 26.06.2002 on the issue. 3. Shri K. Shivakumar (AR) appearing on behalf of the Revenue defended the orders passed by the adjudicating authority. He also relied upon the judgment of CCE vs. Mahendra Petrochemicals Limited [2010 (256) ELT 473 (Tri. Ahmd.)]. 4. Heard both sides and perused the case records. On the issue of export of goods and chargeability of NCCD, CBEC vide Circular No 641/32/2002-CX dated 26.06.2002 has issued following clarification:- i I am directed to refer to Section 129 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with effect from 01.03.2003 on the said goods as per section 136 of the Finance Act, 2001 read with clause 161 of the Finance Bill 2003 (now section 169 of the Finance Act, 2003). It appeared that the exemption from the payment of National Calamity Contingent Duty (NCCD) was not available to the manufacturer of the above goods cleared to 100% EOU, Further, whereas the notification no.46/2003-CE dated 17.5.2003 was issued to exempt the goods falling under heading no.54.02 from the whole of the NCCD leviable thereon under Section 136 of the Finance Act, 2001 read with clause 161 of the Finance Bill, 2003 (now section 169 of the Finance Act, 2003) if such goods are manufactured from the goods falling under heading no.54.02. However, there was no specific exemption notification that exemption notification that exempted NCCD imposed on POY cleared for captive consumption. 3. On adjudication, the original adjudicating authority confirmed the demand and imposed penalty and directed the company to pay interest. On appeal, the Commissioner (Appeals) upheld the impugned order and rejected the assessee's appeal. 4. We find that the issue had already been decided by this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uty (hereinafter referred as NCCD). Duty of Rs. 6,73,288/- has been confirmed against the appellant in respect of POY cleared to other 100% EOU on the ground that such clearances has to be treated as deemed export and inasmuch as the same was not physically export, the benefit of Circular No. 641/32/2002-CX., dt. 26-6-02 cannot be extended to the appellant, clarifying the NCCD as duty of excise, the same is not liable to be paid at the time of export of the goods. We find that Tribunal in the case of M/s. Modern Petrofils Ltd. being Order No. A/2689/WZB/AHD/2008, dt. 3-2-08, by taking note of the precedent decisions, has held that NCCD is not leviable in respect of the goods cleared to other 100% EOU. As such, we find that the issue is settled in favour of the assessee. We, accordingly, set aside the demand of duty of Rs. 6,73,288/-. 3. Another demand of Rs. 10,39,624/- has been confirmed against the appellant as NCCD in respect of POY cleared to their job workers. The appellant is not contesting the said demand, but submits that the non-payment of the same has occurred on account of the fact that the appellant was, prior to the period in question, paying NCCD on the final....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the following case laws decided by this Tribunal:- a) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2094/WZB/AHD/2011, dt.10.06.2011 (in Appeal No.E/2748/2006) b) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2689/WZB/AHD/2008, dt.03.12.2008 (in Appeal No.E/1640/2005) c) M/s Filatex India Ltd Vs CCE Vapi [2014 (302) ELT 446 (Tri-Ahmd)] 3. Shri L. Patra, learned Authorised Representative appearing for the Revenue defended the order passed by the first Appellate Authority. He made the Bench go through Para 4 of the OIA dt.27.02.2007 passed by the first Appellate Authority, to drive home the point that exemption under Notification No.67/95-CE, dt.17.03.1995 is not applicable to the POY consumed captively when the end product is chargeable to Nil rate of NCCD. 4. Heard both the sides and perused the case records. The issue involved in this appeal is whether the NCCD is leviable on POY captively consumed. The Appellants has relied upon the case law of Modern Petrofils Ltd (supra) in Appeal No.E/2748/2006 passed by this Tribunal. 4.1 Para 2, 4, 5 & 6 of the above Order dt.10.06.2011 are reproduced below:- 4.2. The ....