TMI Blog2012 (9) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... I/25/2009 dated 23-1-2009 passed by the Commissioner (Appeals) III, Central Excise, Pune arising out of Order-in-Original No. Rebate-162/CEX/2008-09, dated 11-6-2008 as passed by the jurisdictional Assistant Commissioner, Central Excise, Pune-VII Division. 2. Brief facts of the cases are that the Applicant is a EHTP Unit which had exported goods falling under Chapter Headings 9032 of the Central Excise Tariff Act, 1985 on payment of duty. They filed various rebate claims totaling to Rs. 33,44,277/- in respect of goods exported. The claim was as per the provisions of Rule 18 of the Central Excise Rules, 2002. Two Show Cause Notices dated 25-2-2008 and 13-3-2008 to deny the rebates claimed to them were issued on the grounds that payment of duty by the Applicant was not required in view of the full exemption provided to EOUs/EHTPs under Notification No. 24/03-C.E., dated 31-3-2003. The payment of duty through CENVAT account was not viewed as duty under Section 3 of the Central Excise Act, 1944. the contention of the department was that as no tax can be collected without the authority of law, there would be no question of sanction of rebate claim of the amount debited in the CENVAT a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relies on the Supreme Court decision in Civil Appeal No. 393/1997 pertaining to M/s. Johnson Johnson Ltd. - 2003 (156) E.L.T. 166 (S.C.). A.4.6 Under the Central Excise Law, the statutory provision governing exports under claim for rebate of duty is Rule 18 of the Central Excise Rules. There is nothing in the said rule to deny the facility of export under claim for rebate to an EHTP unit. Nor the Notification No. 19/2004 issued under Rule 18 bears any such provisions prohibiting an EHTP unit from exporting under claim for rebate. The provisions of the said rule and the notification therefore, holds goods for all exports including exports by EOU, EHTP STP units. This view is further substantiated by the provisions of Notification No. 19/2004 wherein, only those cases listed under para 2(h) are excluded from the scope of Rule 18. The excluded list does not contain goods manufactured by EOUs/EHTPs/STPs. A.4.7 We now turn to the provisions of Cenvat Credit Rule 5 and the Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 issued thereunder, which provide for refund of accumulated Cenvat Credit which cannot be utilized either for payment of duty on goods cleared for home consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to pay the duty or not on the clearance of export goods produced in their premises. The Applicants rely upon the decision made by the Hon ble Mumbai Tribunal in the matter of M/s. Bombay Dyeing and Manufacturing Co. Ltd. v. CCE, Mumbai [2001 (135) E.L.T. 1392 (Tri.-Mum) vide the above judgment the Hon ble Tribunal has decided that if the exemption is conditional, there is an element of option. The said judgment is also maintained by the Hon ble Supreme Court of India reported under 2005 (179) E.L.T. 276 (S.C.). B.4.5 In the matter of M/s. Techno Submersible Pumps Pvt. Ltd. v. CCE, Ahmedabad [2009 (244) E.L.T. 494 (Tri. - Ahmedabad)], the Hon ble Tribunal has ruled that we find that the said Section 5A(1) is to the effect that where the goods are unconditionally exempted, as assessee has no choice to pay duty on the same. However, in the present case the goods attracted same rate of duty and were not exempted unconditionally. Strictly speaking, the said rule would not apply. B.4.6 The Applicants submit that if they are willing to avail the exemption under Notification No. 24/2003-C.E., dated 31-3-2003 they have to clear the goods in terms of Rule 19 of Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submission of the applicant and also perused the orders passed by the lower authorities. 6.1 Government notes that in this case matter the Applicant has 1st submitted that his EHTP Unit cannot be treated as equivalent to an EOU and they are entitled to clear their export goods on payment of (domestic) tariff rate of duty under rebate claim. Government notes that as per para 6.1 of chapter 6 of FT Policy 2009-14, Units undertaking to export their entire production of goods and services except permissible sales in DTA, may set up under EOU scheme, EHTP/STP/BTP schemes. This unit is set up under EHTP scheme which is required to export entire production of goods services except the permissible sales in India. As such, the exemption from payment of duty in terms of Notification No. 24/2003-C.E., dated 31-3-2003 is applicable to EHTP Unit which is a Export Oriented Undertaking. 7. From perusal of records, Government observes that the applicant a EHTP Unit which exported certain consignments on payment of duty and filed rebate claims which were rejected by the lower authorities that as the applicant being EHTP Unit, a export oriented undertaking, are not required to pay duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute, 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 the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon : Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured (i) in a free trade brought to any other place in India; Zone or a special economic zone and or by a hundred per (ii) brought to any place in cent export-oriented undertaking and India. Explanation: (1A) for removal of doubts, it is hereby declared that where an exemption under sub section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. 7.3 Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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