9911796707
TMI Blog2019 (3) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... previous order of the Tribunal dated 28 September 2017 on the same issue was decided in favour of the respondent. The Revenue has agitated the order-in-appeal on the ground that the Commissioner (Appeals) has not taken into consideration the fact that the previous order of the Tribunal dated 28 September 2017 was not appealed against due to the revised monetary limits prescribed by the CBEC vide instructions dated 11 July 2018 and so the issue needs to be examined on merits. 2. Briefly stated the facts are that the respondent is an EOU unit engaged in the manufacture and clearance of Freeze Dried Fruits, Culinary Herbs and spices (herein after referred to as the goods) for export as well as in DTA which carry nil rate of duty as per Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-appeal dated 24 May 2018 allowed appeal of the respondent on the ground that the judgment of the Tribunal dated 28 September 2017 in their own case was in their favour and the same was binding upon him. In its final order no. 56968 of 2017 dated 28 September 2017, the learned Single Member had allowed the previous appeal of the present respondent on the ground that at the time of availment of credit, no objection was raised that it was not entitled to avail Cenvat credit. Therefore, at the time of filing of the refund claim, the refund claim cannot be denied on the ground that Cenvat credit was not admissible. 4. The Revenue is in appeal against the order dated 24 May 2018. The Revenue has pleaded that the issue needs to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 3(1) of the Central Excise Act, 2002 is the duty of excise, though the measure of excise duty was equivalent to the Customs duty. He also placed certain case laws in support his claim. 5. At the outset we are not inclined to accept the submission of the Revenue that the refund has to be disallowed for the reason that the Cenvat Credit was not admissible on the input services because the finished products were exempt from duty. This is for the reason that in such a case, the proper course for the department was to start proceedings for disallowing the Cenvat credit instead of denying the refund. We agree with the observation of the learned Member in the case of the Appellant that if at the time of availment of credit no objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was defective notice the demand was not maintainable. For the afore-stated reasons the Tribunal was right in coming to the conclusion that the show cause notice was defective." Further in the case of Commissioner of Central Excise & Customs, Visakhapatnam versus Matrix Laboratories Ltd. reported in 2012 (281) E.L.T. 569 (Tri.-Bang.) again it was held that the duty paid by 100% EOU at the time of clearance to DTA is an excise duty and not the customs duty. The Tribunal held as under:- "5. I have given careful consideration to the submissions. It appears from the records that the respondent was a DTA unit prior to December 2007. In this case, they had procured inputs and capital goods by way of import and also from indigenous sources and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no law denying this right to a 100% EOU. The appeals filed by the department are ill-conceived and the same are rejected." 7. Thus the duty paid by the respondent at the time of clearance to DTA was duty of excise and therefore, the goods cleared by the respondent cannot considered as exempted goods. Since, 100% EOU have been given a different treatment for levy of duty, excisability of their products has to be determined from that perspective. The statutory provisions under Rule 2(d) of the Cenvat Credit Rules, 2004 do not speak of Tariff duty but the "duty of excise leviable thereon", which was undisputedly levied in the case of the respondent. Thus, even on merits, the appeal of the revenue is not sustainable. 8. Regarding the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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