TMI Blog2003 (12) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act and the Central Excise Act. The relevant Central Excise notification providing for exemption in respect of capital goods, raw materials, etc., procured indigenously by an EOU, for the period (1-1-2000 to 21-5-2000) relevant to the instant case, is Notification No. 1/95-C.E., dated 4-1-95 as amended from time to time. The notification exempted the excisable goods specified in Annexure-I thereto, when brought into a 100% EOU in connection with the manufacture and packaging of export products, from the Basic Excise Duty (leviable under Section 3 of the Central Excise Act) and the Additional Excise Duty leviable under Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Annexure-I to the Notification was amended from time to time. Only two of the entries in the Annexure are relevant to the dispute in this case. These entries, at Serial Nos. 3 and 7 of the Annexure, for the period 4-1-95 to 14-9-98, are as under :- ANNEXURE-I 1. . 2. . 3. Captive power plants, including captive generating sets and their spares, fuel, lubricants and other consumables for such plants and generati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty by alleging that the appellants had, with intent to evade payment of duty on the furnace oil, misdeclared that the furnace oil was 'used as fuel in the manufacture of instant tea'. The party denied the allegations and contested the demand of duty by pleading that furnace oil used in the boilers was a 'consumable' and hence eligible for the exemption under the Notification as also by contending that the demand was barred by limitation. In the common order passed by the Commissioner in adjudication of the two show cause notices, it was held that the exemption under the Notification was not available to furnace oil and hence the appellants were liable to pay duty. The demand for the period up to 31-12-1999 was, however, held to be time-barred. 3. Heard both the sides. The learned Counsel for the appellants referred to the process of manufacture of Instant Tea Powder and submitted that furnace oil used as fuel in boilers for generating steam for the manufacture of the tea powder was squarely covered by the entry 'consumables' in Annexure-I to the Notification; that the entries in the said Annexure had to be liberally construed so as to give full effect to the EOU scheme; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Range Officer concerned. Duty-free indigenous procurement of furnace oil had, accordingly, been permitted through CT3 certificates issued in accordance with the procedure under Chapter X of the Central Excise Rules, 1944. Under the successor-Notification (1/95-C.E.), the appellants continued to claim as above. These facts have been correctly found and recorded in the impugned order of the Commissioner. However, with reference to Notification No. l/95-C.E., the adjudicating authority has arrived at a conclusion that furnace oil cannot be treated as "consumable". It is this conclusion that is under challenge in this appeal. 5.2 The adjudicating authority's reasoning for the above finding reads thus :- "furnace oil is no doubt a fuel but there is a separate entry for exemption of fuel used for captive power plants including captive generating sets in the same notification. In other words a conscious distinction between fuel and consumables has been made in Notification 1/95. Therefore extending the benefit of exemption for furnace oil as consumable under Notification 1/95 to M/s. Tata Tea Ltd., is ab-initio wrong. For the first time furnace oil used in boiler for te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive intent underlying the Notification is clear from the very opening paragraph thereof : "In exercise of the powers.............., the Central Government ....hereby exempts excisable goods specified in Annexure-I to this notification (hereinafter referred to as the said goods) when brought, in connection with - (a) the manufacture and packaging of articles, into a hundred per cent export-oriented undertaking..............." "Furnace oil required for the boilers" vide Entry 3C of Annexure-I as amended on 22-5-2000 is specific for all 100% EOUs from the said date. But "furnace oil required for the boilers used in the textile units" vide Entry 3C of Annexure-I for the period from 15-9-98 to 21-5-2000 was specific only for the textiles units among the 100% EOUs for the said period. On the other hand, "consumables" have ever remained as specified goods for all 100% EOUs under the notification vide Entry No. 7 of Anexure-I thereto. It follows that for the relevant period (1-1-2000 to 21-5-2000), it was Entry No. 7 and not Entry No. 3C that was specific for the appellants' EOU. 5.3. The question, now, is whether the furnace oil used as fuel for the appellants' boilers could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EOUs. This Tribunal held that the assessee had the right to choose that Notification which extended the benefit to him. Again, this decision does not appear to be relevant to the facts of the present case in which the party has claimed only under one notification viz. 1/95-C.E. for the relevant period. 6.2. In the case of Johnson Johnson (supra), the Hon'ble Supreme Court held that the legislative intent behind an Exemption Notification could be gathered from a subsequent notification on the same subject. In Sun Export Corporation (supra), the Apex Court held that, where two views were possible in a taxation matter, the one favourable to the assessee was to be preferred. The decision in Belapur Sugar Allied Industries (supra) was that, unless there was anything to the contrary in the taxing statute, rules or the notification itself, if there be two possible interpretations of an Exemption Notification, that interpretation which subserved the object and purpose of exemption should be accepted. But, in the instant case, we have not heard anybody say that 'consumable' could be so construed as to exclude fuels like furnace oil used in boilers. In the cases of Mangalore Chemicals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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