TMI Blog2007 (8) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-2001 71,871/- June, 2001 4 Tooling 773 dated 30-12-2003 2,74,007/- January, 2004 3. The appellants have used the abovementioned capital goods in the manufacture of final products cleared by them on payment of appropriate duty of excise. 4. The appellants wished to export the above said capital goods. Therefore, vide letter dated 08-04.2006 (Annexure 1), the appellants wrote to the department that they would export the said capital goods under UT bond. 5. However, vide letter dated 19-4-2006 (Annexure 2), the Superintendent of Central Excise, Goa informed the appellants that the appellants could not export the said capital goods under bond in terms of Rule 19 of the Central Excise Rules, 2002 as the same were not manufactured by the appellants. 6. In reply to the above letter, the appellants vide their letter dated 24-4-2006 submitted that they were entitled to export the said capital goods under bond in terms of Rule 19 of the Central Excise Rules, 2002. The appellants, further submitted that vide Order-in-original dated 18-11-2005, the Assistant Commissioner of Central Excise, Goa has granted rebate of duty paid to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es provides that when inputs or capital goods on which cenvat credit has been taken are removed as such from the factory, then the manufacturer is liable to pay duty equivalent to the credit availed on such inputs or capital goods. 16. The expression as such employed under Rule 3(5) does not refer to used and/or old of capital goods. The expression as such means in the very same state or condition. The expression as such means in original form. 17. The capital goods have been used in the manufacture of final product during the relevant period. This fact is undisputed. Therefore, on removal of used capital goods the appellants are not liable to pay differential amount of duty. Rule 3(5) does not cover within its ambit a situation dealing with removal of used capital goods. Therefore, the appellants were not required to pay any amount on the used capital goods removed by them. Hence, the question of demanding differential duty does not arise. The impugned order is liable to be set aside on this ground alone. Reliance placed - Madura Coats v. C.C.E. = 2005 (190) E.L.T. 450 (T) = 2005 (70) RLT 730 (T), Salona Cotspin v. C.C.E. - 2006 (201) E.L.T. 592 (T) = 2006 (75) RLT 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, when the inputs or capital goods on which credit has been taken are exported under bond, the duty payable was clarified to be nil . Since the manufacturer can export the goods under bond without payment of duty and therefore the person who has taken on credit on the capital goods can also export the goods without payment of any duty. In other words, removal of capital goods for export has been equated by the CBEC with the removal of final products manufactured by a manufacturer. 26. The Central Board of Excise Customs vide Circular No. 283/117/96-CX, dated 31-12-1996 had clarified that in case the inputs are cleared for export on payment by debiting under RG 23A Part II the manufacturer will be entitled for rebate under Rule 12(1)(a) of the Central Excise Rules. The relevant portion of this Circular is as under :- 4. It is also observed that in case such inputs are cleared on payment of duty by debit in RG 23A Part II account by virtue of Rule 57F(4)(iii), the manufacturer will be entitled for rebate under Rule 12(1)(a) of the Central Excise Rules. He is, however, put to disadvantage if he opts for export under bond procedure. The exports under claim of rebate and expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they had already filed the appeal but later realized that they had not and hence requested to condone the delay. It was further added that no duty is leviable on used capital goods in terms of Rule 57 (S) (2). The Board itself has stated that as the goods arc exported, no duty is payable and rebate is to be granted. Para 8 of Circular dated 29-8-2000 as well as Circular dated 13-1-2006 is important. Further, in a similar case, the department has already granted refund and that the order has not been challenged. They further added that we has asked for export under bond but were directed to pay duty and clear and so now the refund on these exported goods is due. DISCUSSIONS AND FINDINGS 35. I have carefully examined the records of the case and the submissions made by the assessee. The first issue to be discussed is condonation of delay of 8 days which the party has stated was because they were busy with the Income Tax Audit and they thought that the appeal was already filed. On checking, it was noticed that it was not filed. As per Section 35-I condone the delay and accept the appeal. 36. The case can be divided into two categories. The first being the party s contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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