TMI Blog2017 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2001 - Appeal allowed - decided in favor of the assessee. - Excise Appeal No. 1995/2010-EX (DB) - Final Order No. 53866/2016 - Dated:- 28-9-2016 - Dr. Satish Chandra, President And Mr. B. Ravichandran, Member (Technical) Shri P.K. Sahu, Advocate for the appellant Shri Yogesh Agarwal, DR for the respondent ORDER Per B Ravichandran The appellant is aggrieved by the Order dated 8.4.2010 of the Commissioner of Central Excise, New Delhi. 2. The brief facts of the case are that the appellants are engaged in the manufacture of Cement and Clinker liable to central excise duty. They have cleared cement to the units, which are situated in Special Economic Zone, without payment of duty. The clinker was captively used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the exemption available to captively consumed clinker in terms of Notification No.67/95-CE is sought to be denied only on the ground that the final product cement, was cleared to the units in SEZ and SEZ not being listed in the exclusion in the proviso of the said notification. We find that this issue has been a subject matter of the decision by the Tribunal reported in 2015-TIOL-2110-CESTAT-Madras, wherein the Tribunal has held as under:- 32. As regards the last issue, the Revenue contended that the clause (i) of proviso to Notification No. 67/95 provides exception only for clearance to FTZ and not for SEZ. It is contended that the very purpose of the non-inclusion of SEZ in Notification No.67/95 is to make it apply only to FTZ and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that when the Board already amended the Rule 6 (5) (ii) of Cenvat Credit Rules, 2001 to include supplies to SEZ, the clause (i) of the proviso to Notification No.67/95 should also been amended accordingly to replace the word FTZ to SEZ. Therefore, we are unable to accept the dept. plea that clause (i) of proviso to the notification No.67/95 is intentionally kept and meant only to FTZ and not SEZ and we hold that the appellants are eligible for the exemption under Notification No.67/95. 34. Having discussed all the points on merits, we also find that as final resort demanding duty on the intermediate product is otherwise also hit by Revenue neutrality, as the appellants are otherwise entitled to avail the Cenvat credit of the duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case is admittedly available as credit to the appellant and the same would have added in more scriptory work to the assessee, in stead of resulting in any revenue earning to the Department or revenue loss to the assessees. The entire situation being revenue neutral, we find no justification for confirmation of demands in question on this ground. 35. In view of foregoing discussions, we hold that the appellants are eligible for exemption under Notification 67/95-CE on clinker captively consumed for manufacture of cement cleared to SEZ units/developers without payment of duty for both the periods prior to and after the amendment of SEZ Act. Accordingly, the impugned orders in all the assessees appeals are set aside and the appeals al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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