9911796707
TMI Blog2012 (9) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... . 313191/- on 11-1-08 under the provisions of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.) dated 6-9-2004. It appeared that being a 100% EOU, all excisable goods produced or manufactured in the assessee's unit except such goods if brought to any other place in India, are exempted from whole of duty of excise as per the Notification No. 24/2003-C.E., dated 31-3-2003. 2.1 The said exemption notification was issued under sub-section (1) of Section 5A of Central Excise Act, 1944. Further, w.e.f. 13-5-2005 following para was inserted in this sub-section resultantly, it became mandatory for anybody to avail the exemption issued under this section - "[(lA) For the removal of doubts, it is hereby d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 4.1 The question to be decided in this application is as to whether an 100% EOU can pay duty on export clearance In view of the provisions of Notification No. 24/2003-C.E., dated 31-3-2003 read with insertion made in Section 5A of the Central Excise Act, 1944 w.e.f. 13-5-2005 or not. If yes, the respondent was entitied to claim the rebate of the duty paid towards export clearance. To determine as to whether an 100% EOU can pay duty on export clearance or not, relevant portion of Notification No. 24/2003-C.E., dated 31-3-2003 is reproduced below, which exempts 100% EOU from payment of duty on export clearance :- EOU - Exemption to goods produced therein : "In exercise of the power conferred by sub-section (1) of Section 5A of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this Section and not to pay duty on export clearance. 4.2 From the above, it is apparent that the said exemption Notification was issued under sub-section (1) of Section 5A of Central Excise Act, 1944 and left no discretion for any 100% EOU to pay duty on export clearance. Further this notification also do not prescribe any condition for availing its benefit. 4.3 Therefore, it appears that Commissioner (Appeals) erred in holding that the exemption has not been granted absolutely and therefore it was not mandatory for the assessee to avail the benefit of Notification No. 24/2003-C.E., dated 31-3-03 read with insertion made in Section 5A of the Central Excise Act, 1944 w.e.f. 13-5-05 the assessee did not have any discretion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g without any condition. The goods cleared in DTA are not covered by the exemption notification. It cannot be considered as a condition: for availing exemption for export goods in terms of said notification. As such the notification No. 24/2003-C.E., dated 31-3-2003 issued under Section 5A(1A) of Central Excise Act, 1944 is an unconditional one. 10. The Notification No. 24/2003-C.E., dated 31-3-2003 under which the applicant Unit was working, reads as under : "In exercise of the powers conferred by sub-section (1) of Section 5A of Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to this Notification is that the exemption is not applicable to such goods if brought to any other place in India. This means that this exemption is not available to the goods cleared for home consumption. There is no condition of exemption from payment of duty for exported goods. Hence this Notification No. 24/2003-C.E., dated 31-3-2003 is absolute, and unconditional and rightly covered under Section 5A(1A) of Central Excise Act, 1944 which reads as under : "(1). If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
