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2018 (9) TMI 908 - CESTAT NEW DELHIRefund claim - destruction of rejected inputs and expired manufactured goods - rejection of refund on the ground that destruction was not carried out in the presence of Central Excise officer and that the prior permission for taking out of the goods of the appellants units was not taken before the destruction - Held that:- Admittedly the noticee is a 100% Export Oriented Unit (EOU). Resultantly, a Notification No. 23/2003 dated 31.03.2003 as is stands amended vide Notification No. 30/2015 dated 25.05.2015 are applicable upon the appellant. As per this Notification, the duty shall not be leviable in case the capital goods or reject, waste or scrap material are to be destroyed. As per 2003 Notification, presence of Central Excise Officer was a mandate at the time of such destruction. However, after the amendment in the Notification, if the said destruction is within the unit, the intimation thereof is required to be given to the Customs Authorities and if it is outside the unit, a permission of Customs Authorities is required. The fact still is abundantly clear that the duty shall not be leviable on the impugned goods, appellant being an EOU. It is also apparent from the Show Cause Notice itself is that the appellant has destroyed not only the final and expired goods but the raw materials as well, after taking those out from their premises but to the premises of Madhya Pradesh Waste Management Project. It is observed that while such removal, the appellant has already paid the duty on the stuff removed - It is also apparent from record that while removing the products from appellant’s unit, intimation was given by the appellant to the Customs Authorities. The prior permission or presence of the Custom Officer retains no further significance. Resultantly, the lapse on part of the appellant was not at all substantive in nature. It was merely procedural lapse. It is a substantive benefit of the appellant and as such cannot be denied on a mere procedural lapse on his part that too when it occurred due to no knowledge of the impugned Notification. Refund is to be allowed - appeal allowed - decided in favor of appellant.
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