TMI Blog2023 (3) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 252 - CESTAT BANGALORE] to set aside the demand. The rejection of refund is without any legal or factual basis. The appellants have also filed miscellaneous applications seeking consideration of the decision in the case of M/S. JUBILANT LIFE SCIENCES LIMITED VERSUS CCE, MEERUT-II [ 2013 (11) TMI 1213 - CESTAT NEW DELHI] and other decisions. There is no new plea put forward by the appellants and these applications are only a prayer for consideration of the application of the proposition of law laid down in these judgements. The same have already been considered. Appeal allowed. - Excise Appeal No. 40263 of 2013, Excise Appeal No. 40265 of 2013, Excise Appeal No. 40368 of 2013 and Excise Miscellaneous Application No. 40087-40089/2020 - FINAL ORDER NOs. 40178-40180 / 2023 - Dated:- 17-3-2023 - MRS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri S. Durairaj, Learned Advocate for the Appellant(s) Shri M. Ambe, Learned Deputy Commissioner for the Respondent ORDER The issue involved in all these appeals being the same, they were heard together and disposed of by this common order. 2. Brief facts of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under protest, as directed by the Revenue on the semi-finished goods, work-in-progress and finished goods; however, the appellants are liable to pay duty, as per Sl. No. 2 of Notification No. 23/2003-C.E. Thus, the appellants had made payment of an excess amount. The appellants had therefore claimed refund of 5% excess Basic Customs Duty (BCD) so paid by them, but the same was rejected by the authorities below. The difference in the method of calculation of duty between the appellants and the Revenue was furnished by the Learned Counsel for the appellants, as below:- Appellants method Revenue s method BCD 5% BCD 10% CVD 10% CVD 10% Edu. Cess Excise 2% Edu. Cess Excise 2% Sec. Edu. Cess - Excise 1% Sec. Edu. Cess - Excise 1% Cus. Edu. Cess 2% Cus. Edu. Cess 2% Cus. Sec. Edu. Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Duty; that otherwise, they need not take into account the Customs Duty element to determine the duty liability. 4.3.2 It was argued that To be de-bonded goods are to be treated on par with DTA clearances covered by the definition goods manufactured in EOU and brought to any other place in India. That prior to 11.05.2001, the proviso to clause (ii) of sub-section (1) of Section 3 of the Central Excise Act, 1944, read as:- Provided that the duties of excise, which shall be levied and collected on any excisable goods, which are produced or manufactured, - (ii) by a hundred per cent export-oriented undertaking and allowed to be sold in India, shall be the amount equal to the aggregate of the duties of customs. 4.3.3 The phrase allowed to be sold in India created some anomaly and thereafter, this phrase was replaced by brought to any other place in India . The new phrase has a wider amplitude to cover all goods that were manufactured in EOU but were not exported. Some of the EOUs would have been permitted by the FTP to clear goods other than exports. Some of the EOUs might still default by clearing the goods without permission. In order to distinguish between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to the duty paid on semi-finished goods and finished goods. On behalf of the appellant, it is submitted that the monthly ER-2 returns for EOU for the period prior to the date of Final Exit Order would establish that the entire goods were exported. Further, no duty is required to be paid on such semi-finished goods / work-in-progress goods as those have not completed the manufacturing stage. Therefore, the appellants, though would be eligible for refund of the entire duty paid, are limiting their claim to the concessional rate of duty as per Sl. No. 2 of Notification No. 23/2003-C.E. The Department has taken the view that at the time of de-bonding, the appellants cannot claim the concessional rate of duty as per the Notification and that they have to pay the duty as per Section 3(1) of the Central Excise Act, 1944. Sub-section (1) of Section 3 specifies the Excise Duty that has to be paid on excisable goods produced or manufactured in India. The proviso to sub-section (1) of Section 3 specifies the duty that has to be paid for excisable goods which are produced or manufactured: (i) by 100% EOU and (ii) in a free trade zone. 9. Prior to 11.05.2001, the said proviso re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Excise Authorities and the date of issue of final debonding order by the Development Commissioner, an EOU can export the finished goods under claim for advance authorization/DEPB/duty draw back and that no excise duty can be charged in respect of such goods as the same have not been cleared into DTA. In view of this, the impugned order rejecting the refund claim is not sustainable. The same is set aside. The appeal is allowed. 11. Further, reliance was placed on the decision of the Tribunal in the case of M/s. Jubilant Life Sciences Ltd. v. Commissioner of Central Excise, Meerut [2018 (5) TMI 466 CESTAT, Allahabad] by the Learned Counsel for the appellants. In the above case, after hearing both the sides, the Tribunal had held as under: - 5. Having considered the rival contentions and on perusal of the facts on record, we find that the differential Central Excise duty of Rs.3,37,48,484/- is not sustainable for the reasons that the differential duty was demanded on the goods which had not came into existence and on the goods which were not removed from the factory of manufacture of appellant or their job workers. Therefore, we hold that the confirmation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd. (supra), the Tribunal held that the demand of duty in respect of semi-finished goods cannot sustain. The Tribunal followed the decision in the case of M/s. Tirumala Seung Han Textiles Ltd. v. C.C.E., Hyderabad [2009 (237) E.L.T. 145 (Tribunal Bangalore)] to set aside the demand. 14. After appreciating the facts and following the ratio laid down in the above decisions, we are of the view that the rejection of refund is without any legal or factual basis. 15. The appellants have also filed miscellaneous applications seeking consideration of the decision in the case of M/s. Jubilant Life Sciences Ltd. v. C.C.E., Meerut-II [2013 (11) TMI 1213 = 2014 (301) E.L.T. 649 (Tri. Del.)] and other decisions. There is no new plea put forward by the appellants and these applications are only a prayer for consideration of the application of the proposition of law laid down in these judgements. The same have already been considered. 16. In the result, the impugned orders are set aside. 17. The appeals are allowed with consequential reliefs, if any. The miscellaneous applications filed by the appellants are disposed of accordingly. (Order pronounced in the open court on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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