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2016 (8) TMI 935 - AT - Central ExciseDemand of differential duty - fertilizers cleared by them by availing the notification no. 6/02-CE dated 01/03/2002 and Notification No. 4/06-CE dated 1/3/2006 during the period 2001-2002 to 2005-2006 but some part of the fertilizers were lost in transit and were not used as fertilizers - Held that:- the notification grants exemption to all goods other than those which are not to be used as fertilizer, i.e., exemption is provided in the negative way. The literal meaning of the notification would indicate that if there is unambiguous intention at the time of clearance of the goods not to use them as fertilizer, the exemption shall not be available to such goods. In other words, if goods are clearly intended to be used as fertilizers at the time of clearance the exemption would be available. Since, in this case, there was no such intention of not using the goods as fertilizerand goods were cleared with clear intention to be used a fertilizer then mere fact that certain quantity of urea was not used as fertilizer due to loss in transportation, re-bagging and standardization, it would not mean that such urea was not intended to be used as fertilizer. Further, I find that there is no indication in the notification that urea should be actually used as fertilizer for benefit of said notification. The department contention that impugned goods must be actually used as fertilizer is not correct. The benefit of notification to urea for use in fertilizer has to be decided at the time of clearance of the goods itself from the factory. In my view actual use of urea as fertilizer is not envisaged in the impugned notification. Since there is all the intention at the time of clearance that urea to be used as fertilizer and there is no intention that urea will not be used as fertilizers, hence the benefit of exemption to urea will apply to all quantity of urea even if some quantity of urea is subsequently destroyed or lost due to transportation, re-bagging and standardization. - Decided against the Revenue
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