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2017 (1) TMI 341 - CESTAT NEW DELHI

2017 (1) TMI 341 - CESTAT NEW DELHI - TMI - 100% EOU - Drawback claim - recovery on the ground that the appellant is a 100% EOU and as per N/N. 26/03-Cus(NT) dated 10.4.03, as amended, a 100% EOU is debarred from claiming the benefit of notification - Held that: - There is no dispute that the materials used by them were of duty paid and the fact that appellant has not availed any credit of duty so paid is also admitted by the Revenue. Denial of draw back is on the sole ground that same would not .....

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t be taken away by way of notification - appeal allowed - decided in favor of appellant. - Customs Appeal No. 50501, 50506 & 50507 of 2016 - Final Order No. 50003-50005 /2017 - Dated:- 3-1-2017 - Ms. Archana Wadhwa, Member (Judicial) And Mr. Ashok K Arya, Member (Technical) Shri Sudhir Malhora and Shri Tarun Chawla, Advocates for the Appellants Shri S K Sheoram, DR for the Respondent ORDER Per Archana Wadhwa (for the Bench) All three appeals are disposed of by a common order as they arise out of .....

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ng their final products out of the raw materials imported by them, free of duty. Such final goods were being cleared by them were exported by them under valid shipping bill without any claim of draw back. There is no dispute on export of the said goods. 3. Apart from that, the appellant was also procuring the duty paid inputs from indigenous manufacturer which were being used by them in the manufacture of their final product without the claim of any cenvat credit. Such goods were exported by the .....

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y the appellant on the alleged ground that the appellant is a 100% EOU and as per notification No. 26/03-Cus(NT) dated 10.4.03, as amended, a 100% EOU is debarred from claiming the benefit of notification. Accordingly, the notice proposed to confirm the demand on the above ground resulting in passing of present impugned order. 6. After hearing both sides duly represented by Shri Sudhir Malhotra, learned advocate appearing for the appellant and Shri S K Sheoram, learned DR appearing for the Reven .....

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or taking out from a place in domestic tariff act DTA to special economic zone . In the present case, the appellants have admittedly, exported the goods inasmuch as they were taken out of India to a place outside India. 7. In terms of Rule 3 of the said Rules, the draw back is allowable on the export of the goods on such amount or on such rates, as may be determined by the Central Government. Second proviso to said rule is to the effect that no draw back shall be allowed if the said goods are pr .....

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orted by a unit licensed as hundred per cent Export Oriented Unit in terms of the provisions of the relevant Export and Import Policy and the Foreign Trade Policy . 9. As is seen Revenue s total reliance is on the said notification which disallows draw back on all India industrial rate if the goods are manufactured or exported by a 100% EOU. There is otherwise no dispute that the appellants have manfuactured the goods out of duty paid raw material and have not taken any credit of the said duty s .....

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the notification provisions of Act / Rules would prevail. The Hon ble Supreme Court in the case of Corporation Bank vs. Saraswati Abharansala [2009 (233) ELT 3 SC] has held that statutory provisions provided for refund are to prevail rather than the notification which lays to the contrary. The appellants contention is that inasmuch as they have paid taxes and duties on the raw materials and inasmuch as such taxes and duties cannot be exported, the legislative intent to reimburse the element of t .....

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le 5 of Cenvat Credit Rules, the entire situation is Revenue neutral. Merely because they have opted for the export of the goods under draw back, the Revenue cannot deny them their legitimate claim. 11. Learned Advocate also draw our attention to the Hon ble Karnataka High Court in the case of Karle International [2012 (281) ELT 486 (Kar)] wherein identically worded notification No. 67/98 Cus (NT) laying down that all India Industrial rates of drawback would not be available if finished goods ar .....

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