TMI Blog2020 (1) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... n any bifurcation like DCD,CVD etc. In the instant Appeal, it is not the case of the Revenue that the supplier i.e.100% EOU has availed the exemption under Serial No. 2 of Notification No. 23/2003, their only case is that the EOU supplier has availed benefit of exemption under serial no. 1 of the notification - It is settled position that Rule 3(7) ibid comes into operation only if the benefit has been availed under serial no. 2 of the aforesaid notification as the application of the said rule is conditional upon availing such exemption. In none of the authorities produce by Revenue it has been held that the aforesaid notification that Rule 3(7) will be applicable irrespective of the fact whether the supplier has availed exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sodium Ascorbate IP and Choline Bi Tartrate from M/s. Bajaj Healthcare Ltd. (BHL) a 100% EOU. According to the Appellants M/s. BHL have paid all the duty of excise under section 3 of Central Excise Act, 1994 without claiming any benefit of notification No.23/2003-CE, dt. 31.3.2003. Later on the Appellants have taken credit of the duty representing Basic Customs duty (BCD) as paid by M/s. BHL but the admissibility of same has been disputed by the department. Accordingly a show cause notice dated 28.04.2014 was issued to the Appellants for recovery of wrong Cenvat Credit availed by them during the period April, 2009 to April, 2010 of ₹ 11,19,091/- alongwith interest and penalty. The said demand alongwith interest and penalty was confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny benefit under notification no. 23/2003- CE,dtd.31.3.2003. In support of his submissions, learned Chartered Accountant relied upon number of judicial decisions. Learned Chartered Accountant also raised the issue of limitation. According to him the demand pertains to the period April, 2009 to April, 2010 whereas the show cause notice was issued only on 28.4.2014 which is beyond the period of limitation. Per contra learned Authorised Representative submits that in terms of provisions of Rule 3(7)(a) ibid, if the duty is paid under Sr.No.1 of the Table to Notification No. 23/2003-CE dated 31.3.2003 then the duty is restricted to additional duty component and credit of Basic Customs duty is not admissible. According to him, since the duty pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % Export Oriented Unit for clearance in the domestic tariff area is the duty of Excise and not Custom duty. In the instant Appeal, it is not the case of the Revenue that the supplier i.e.100% EOU has availed the exemption under Serial No. 2 of Notification No. 23/2003, their only case is that the EOU supplier has availed benefit of exemption under serial no. 1 of the notification. It is settled position that Rule 3(7) ibid comes into operation only if the benefit has been availed under serial no. 2 of the aforesaid notification as the application of the said rule is conditional upon availing such exemption. In none of the authorities produce by Revenue it has been held that the aforesaid notification that Rule 3(7) will be applicable irresp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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