TMI Blog1995 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of Extrusions in view of the conditions stipulated in the proviso to Notification No. 217/86-C.E., dated 2-4-1986. The ld. Collector after examining the proviso to this notification has confirmed the finding of the original authority. Noting the argument of the appellant that the extrusions cleared by them are not exempted from duty or chargeable to `Nil rate of duty, as the clearance of extrusion in terms of the notifications is on the basis of a bond executed by the consignee, the ld. Collector has rejected this plea on the ground that as the extrusions cleared by them are exempted from duty under relevant notifications and the same could not have been cleared without payment of duty but for the said exemption. These notifications exempt excisable goods when brought in connection with the manufacture and packaging of articles into an undertaking approved by the Board of Approval for 100% Export Oriented Undertakings appointed by the notification of Govt. of India in the former Ministry of Industry and Civil Supplies (Department of Industrial Development) or into an undertaking located in the free trade zones. In the appellant s case, the excisable goods viz. Alumi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. It was further submitted that the first proviso to the said notification would apply only to cases where the final product is exempted from the whole of the duty as provided for in the C.E. Act i.e. by issue of exemption notification under the C.E. Act and the Rules. Therefore, the further condition of the final product being chargeable to `Nil rate of duty would only apply to cases, where the specified final product is so chargeable under the Central Excise Tariff. It was submitted that in the instant case the extrusions at the time of clearance and thereafter were never exempted from the whole of the duty, nor were the extrusions chargeable to `Nil rate of duty. Hence, the clearances of the extrusions to the Export Processing Zone or Export Oriented Undertakings free of duty would not attract the application of the first proviso of the said notification. It was also submitted that the billets on which duty is being demanded were also exempt from payment of duty under Rule 13 of the C.E. Rules read with the relevant notifications. The ld. Sr. Advocate argued that the department had tried to work backwards from the clearances of Extrusions to arrive at the clearance of bille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... po Ltd. v. Commissioner of Income Tax - 1992 (196) ITR 188; CCE v. Premier Tyres as reported in 1992 (62) E.L.T. 104. He further submitted that the ratio laid down by larger Bench in the case of Kirloskar Oil Engines Ltd. v. CCE, Pune as reported in 1994 (73) E.L.T. 835 para 17.2; and that of the order rendered in the case of M/s. Indian Aluminium Co. Ltd., Order No. 668-669/92-WRB, dated 29-4-1992 and that of ERB as rendered in the case of Orissa Synthetics Ltd. v. CCE, Bhubaneswar as reported in 1994 (69) E.L.T. 585 is also relevant to the present case. 5 Ld. SDR Shri Somesh Arora submitted that the proviso of the notification being very clear for non-granting the benefit of exemption to the inputs used in the clearances of final product for units manufacturing goods, which are exempted from duty or suffering `Nil rate of duty, and therefore, the department s denial of exemption to the clearances made to export units is sustainable. He submitted that the contention of Section 11A is inapplicable is not correct, in view of the ruling rendered in the case of CCE v. Tin Can Manufacturer as reported in 1995 (6) RLT 769, wherein the Tribunal has held that in such cases, the cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 191B of the Central Excise Rules. The proforma of AR 3A itself provides for assessment of duty. The only provision is that the duty need not be paid, if the goods are utilised in the manufacture of the goods to be exported. We also took the actual AR 3A proforma in respect of the clearances in this case, where the duty has been assessed. The department also would enforce the recovery of duty as per the assessment in AR 3A, if the goods are not utilized for the intended purpose. Hence we are unable to appreciate the plea of the ld. JDR that the finished goods have been cleared on charging to nil rate of duty. The goods have been assessed on appropriate rate of duty and the only concession given is that they can be removed without payment of duty for fulfilment of the export requirement. Since the wording of the rule refers to only exempted goods and goods charged to nil rate of duty, the goods which are assessed to proper rate of duty but allowed to be cleared under Bond, cannot, in our view, come within the purview of the proviso to sub-rule (2) of Rule 56A. Hence, we find no reason to interfere with the order of the Collector (Appeals) and the appeal from the Revenue is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 642 at paras 13 to 16 which are noted below : ******* 10. Therefore, in view of the finding given by Hon ble High Court that Rules 12 13 are supplementary and deal with the same matter, namely [excise duty] payable on goods exported out of India. It is also held that the difference between Rules 12 13 is only in the mode and manner of payment of excise duty, which each person chooses to follow. It has been further held that there may be persons who are not in a position to enter into a bond or do not wish to give a bond under Rule 13. In view of this ratio that execution of a bond is merely a facility given to the business and in fact both the type of cases fall in the same category and no discrimination can be done, and that entering of bond has no relevance, therefore, we are of the view that as in all these appeals, admittedly the final products, have been utilised by export units, hence such clearance of the final products, do not attract the proviso to the notification. 11. This issue was also gone into by ERB Bench in the case of M/s. Orissa Synthetics Ltd. v. CCE in Order No. A-477/Cal./94, dated 30-5-1994 and following the ratio of Hon ble Delhi High Court s case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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