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TMI Blog2017 (4) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 4% plus Education Cess in terms of Serial No.3 of the Notification No.23/2003-CE dt. 31.03.2003 read with Notification No.29/2004-CE dt. 09.07.2004. The view of the Department was that since the respondents did not avail any Cenvat Credit on inputs, they did not fulfill condition (iii) of the Notification No.23/2003-CE. The Department felt that they were required to pay duty in terms of Serial No.4 of Notification No.23/2003-CE dt. 31.03.2003 attracting the Central Excise Duty at the rate of 30% of the custom duty plus cess which is applicable to similar goods when imported. The respondents were issued show cause notices for the period from 09.07.2004 to March, 2006, from April, 2006 to August, 2006, from September, 2006 to February, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hargeable to nil rate of duty." The denial is based on the fact that the respondents are not availing the cenvat credit facility on the inputs. A reading of the above condition shows that the goods for which exemption is claimed when manufactured and cleared by unit other than EOU should not be wholly exempted from the excise duty or should not be chargeable to nil rate of duty. It is evident that the fact of the respondents not availing cenvat credit is not a relevant consideration in deciding the question whether they comply with Notification 23/2003-CE. In this regard, we agree with the findings of the Commissioner (Appeals) in para 8, which is reproduced below: "8. There was no dispute regarding fulfillment of first two conditions. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing duty at the rate prescribed at Sr. No.3 of the said Notification. The Hon'ble CESTAT while remanding the case to the Commissioner (Appeals) has also made similar observation. Since on merit the case is in favour of the appellant. I am not going into the issue of limitation." 7. The view taken by the Commissioner (Appeals) is also supported by the judgment in the case of Hanil Era Textiles Ltd.(supra), wherein this Tribunal has held as under: "13. Another issue in most of the appeals is relating to the applicability of the Sr. No. 2 or 3 or 4 of Table to the Notification No.23/2004-C.E., dated 9-7-2004. In most of the cases, Revenue has held that Sr. No. 2 is the applicable Sr. No., while appellants have mainly claimed Sr. No. 4 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot availed Cenvat credit on inputs, hence NIL rate will be applicable to them. Both the Notification Nos. 29/2004-C.E. and 30/2004-C.E., as held by us earlier are inapplicable for 100% EOU in view of proviso to Section 5A(1) of the Central Excise Act and therefore availment or non-availment of Cenvat Credit by 100% EOU is irrelevant. In any case unlike normal unit, 100% EOU can get inputs duty-free and therefore not avail the Cenvat credit or get duty-paid inputs and avail Cenvat credit. Normal DTA units have no such option. They have to get duty-paid inputs. However, after paying duty on inputs, they have option to avail or not to avail credit and pay duty on the final product or clear it at NIL rate of duty. Thus NIL rate is conditional. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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