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TMI Blog2004 (6) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 27/95-C.E., dated 16-3-95 plus 15% of B10 per kg. and concession at 6.05% & goods were released. 2. Subsequently it was noticed that exemption under Notfn. 27/95-C.E., dated 16-3-95 was not eligible as Entry No. 20(1)(c) had been deleted vide Notification 95/95-C.E., dated 26-5-95. The imports made in this case were vide BE dated 18-8-95 to 24-1-96. A notice was therefore issued dated 23-3-96 demanding an amount of Additional Duty of Customs at rate of 15% of 50% by denying the benefit of Notification 27/95-C.E., dated 16-3-95 benefit rate. The lower authority confirmed the demand on all BEs, except on BE No. 6718, dated 18-8-95 remanding that particular BE facts to be verified & examining the time-bar issue after concludi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Act, 1944 wherein a factory under Sec. 2(e) means any premises wherein 'excisable goods' are manufactured and the goods manufactured abroad are not excisable under the Central Excises & Salt Act. Therefore, the ratio of the judgment of the Hon'ble Bombay High Court in the case of Ashok Traders v. UOI, 1987 (32) E.L.T. 262 (Bombay) which was relied upon by the Assistant Commissioner would be squarely applicable to the instant case and the advantage of the Notification will not be available to the applicants. Further the ratio of the decision of the Hon'ble Tribunal in 1987 (29) E.L.T. 278 (T) which held to the effect that the imported goods would not be entitled to the benefit of conditional Notification contingent on production of excisab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant under Notification 85/95, dated 18-5-95, on examination it is found (i) The condition in the said Notification introduced by the proviso clause reads as "Provided that the exemption contained in this notification shall not apply to a factory producing man-made staple fibres or man-made filament yarn of organic polymers by manufacturing processes, either by - (a) Polymerization of organic polymers (b) Chemical transformation of natural organic polymers irrespective of whether such factory produces such man-made filaments only or also manufacture any other goods" (ii) &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty that he would have been called upon to pay in that event......" This decision has been followed in the case of CC v. J.K. Synthelic Ltd. [1996 (87) E.L.T. 582 (SC)]. These proposition of law laid down by the SC & by the Larger Bench in the case of Chandigarh Zinc Pvt. Ltd. [1995 (78) E.L.T. 102] holding that benefit of an exemptions notification would be applicable would be relevant in this case. The department wants to deny the benefit of Notification 85/95, dated 18-5-95 by placing onus on the importer to prove that he is not excluded by the proviso clause, that cannot be upheld. The department should prove that the 'factory' when goods under import originate are excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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