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2021 (7) TMI 632 - AT - Central Excise100% EOU - demand of excise duty on the raw grade oil - LOP, raw oil (not allowed for export) - demand on the ground that the respondent have wrongly availed benefit of Serial No. 20 of the Notification No. 23/2003-CE since raw oil cannot be considered as a mere waste even though it may be of no use to the Respondent but it is a main raw material used for manufacture of refined oil. Can the said raw oil be treated as if manufacture in a DTA Unit and can be cleared under exemption N/N. 4/2005-CE dated 01.03.2005 and predecessor N/N. 6/2002-CE dated 30.04.2003 as amended by N/N. 37/2003-CE dated 30.04.2003 which is applicable to a DTA Unit? HELD THAT:- From the remand order of the tribunal, this tribunal has given clear direction to the Learned adjudicating Commissioner that he shall consider the clearance of raw oil as if cleared by DTA unit and examine whether any duty is liable to be paid. With this clear observation, the Learned Commissioner in de-novo adjudication order bound to decide the duty liability treating the clearance of oil by the respondent as if cleared by the DTA unit. The Learned Counsel for the respondent submits that the remand proceeding was kept in abeyance awaiting the Hon’ble Supreme Court judgment in the revenue’s appeal COMMR. OF CENTRAL EXCISE-III, AHMEDABAD VERSUS M/S GUJARAT AMBUJA EXPORT LTD. [2015 (11) TMI 156 - SUPREME COURT] filed against the Mumbai tribunal order in COMMISSIONER OF C. EX., AHMEDABAD VERSUS GUJARAT AMBUJA EXPORTS LTD. [2006 (9) TMI 391 - CESTAT, MUMBAI]. This fact also clearly indicates that revenue was of clear view that the issue in present case and that of revenue appeal in Supreme Court were one and the same but surprisingly even if Supreme Court dismissed the revenue’s appeal, revenue has tried to re-open the issue by filing this appeal which was dismissed by the Supreme Court. By following the principles laid down by Hon’ble Supreme Court held that the product vegetable raw oil cannot be treated as product of 100% EOU and the same is eligible to clear as if the same is product of DTA and consequently the duty applicable to the DTA unit shall apply to the clearance of raw oil - In the present case the vegetable oil falling under chapter 15.07 during the relevant period is chargeable to nil rate of duty in view of Notification No.4/2005-CE dated 01.03.2005 (serial no 1) predecessor Notification No. 6/2002-CE dated 01.03.2002 as amended by Notification No 37/2003 dated 30.04.2003. Accordingly, the clearance of Raw oil by the respondent is not liable for any duty. Appeals filed by revenue are dismissed.
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