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2020 (2) TMI 1373 - HC - Central Excise100% EOU - Rebate claim - It was the contention of the Department that the petitioner was not entitled to rebate claim under Rule 18 of the Central Excise Rules, 2002 as the goods on which excise duty was paid by the petitioner were exempt from payment of excise duty in terms of N/N. 24/2003-C.E., dated 31-3-2003 and exemption did not apply to such goods if brought to any other place in India - HELD THAT:- The petitioner was not required to pay excise duty in terms of Notification No. 24/2003, dated 1-4-2003. As per the said notification all excisable goods produced manufactured in an Export-Oriented Undertaking was exempt from whole of duty leviable thereon under Section 3 of the Central Excise Act, 1944 and additional duty of excise leviable thereon under Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and additional duty of excise leviable thereon under Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. Only exception under the above exemption notification was under the proviso - The proviso was admittedly not applicable to the facts of the present case. As per Section 5(1A) of the Central Excise Act, 1944, the petitioner could not have paid excise duty. Therefore, the petitioner could not have also paid excise duty goods export to claim rebate. As a “Export Oriented Unit” the petitioner would have been entitled to receive goods without payment of duty under various Customs as Central Excise Notification. Export-oriented units being engaged in generation of foreign exchange for the country have been exempt from payment of duty not only on their procurements but also on final products which are exported. Not only goods used by them are exempt in terms of Notification No. 22/2003-C.E., dated 31-3-2003 but also the final products are exempt under in terms of Notification No. 24/2003-C.E., dated 31-3-2003. The benefit of Notification No. 24/2003-C.E., dated 31-3-2003 conferred on export-oriented units has however resulted in a disability to the petitioner inasmuch as the petitioner procured goods on payment of excise duty and additional duty of customs and allowed such duty to be accumulated in their Cenvat Account. Had the petitioner availed the benefit of Notification No. 22/2003-C.E., dated 31-3-2003 there would have been no such accumulation. Since 100% EOU like the petitioner are entitled to procure goods without payment of duty under Notification No. 22/2003-C.E., dated 31-3-2003 but had procured on payment of duty, the amount of duty paid can be directed to be refunded back to the petitioner as no duty was payable by them even otherwise - the respondent are directed to ascertain the amount that has remained unutilised in view of the denial of rebate claim and refund the same to the petitioner within a period of three months from date of receipt of a copy of this order - petition disposed off.
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