JUDGMENT
V.K. Agrawal, Member (T)
1. In this Appeal filed by M/s. Euro Cotspin Ltd., the issue involved is whether the benefit of Notification No. 82/92-CE dated 27.8.92 can be disallowed for non-production of end-use Certificate.
2. When the matter was called, no-one was present on behalf of the Appellants nor there was any request for adjournment. As the issue involved is in very narrow compass, we heard Shri V. Valte, learned Senior Departmental Representative and perused the records.
3. Learned Senior Departmental Representative submitted that the Appellants, a 100% Export Oriented Undertaking, manufacture and export blended yarn; that they had cleared the impugned goods against quantity based advance licence, advance release order issued by the Licensing Authority in terms of Para 7.15 or 7.17 of the EXIM Policy availing the benefit of Notification No. 82/92-CE; that the Additional Commissioner, under Order-in-Original No. 10/2000 dated 4.4.2000, demanded the duty from the Appellants on the ground that the condition of the notification is that the goods are cleared for manufacturing the goods for export and end-use Certificate to show that the goods have been used for manufacturing goods for export has not been produced by the Appellants; that the Commissioner (Appeals) also under the impugned order has upheld the Order-in-original holding that the onus lies on the Appellants to show that the goods cleared by them without payment of duty had actually been used in the manufacture of goods for export. The learned Senior Departmental Representative emphasized that when the goods are cleared availing the benefit of exemption Notification, the conditions specified therein are to be satisfied; that in this case, the Appellants are required to show that the goods cleared by them have been used for manufacturing the goods for export; that as they have not shown such, the duty is payable by them.
4. We have considered the submissions of learned Senior Departmental Representative and perused the records. On query from the Bench, it has been fairly conceded by the learned Senior Departmental Representative that Notification No. 82/92-CE does not specifically provide that the end-use Certificate has to be presented by the manufacturer availing the benefit of Notification No. 82/92. Notification No. 82/92-CE, as amended provides exemption from the whole of the duty of excise leviable on the goods manufactured in a 100% Export Oriented Undertaking and cleared to a person holding a duty free import licence against the advance release order issued by the Licensing Authority in terms of Paragraph 7.15 or 7.17 of the Export and Import Policy or a back to back Inland letter of credit issued by a Bank in terms of 7.16 of the said Policy. The conditions stipulated in the Notification are that the duty free licence holders has to provide said advance release licence order specifying therein the quantity, description and value of each of the goods permitted to be cleared and the quantity and the value of the items are debited by the Central Excise officers in the advance release order. It is not the case of the Revenue that the goods were not cleared by the Appellants to a person holding a duty free licence against an advance release order issued by the Licensing Authority in terms of specific Para of the EXIM Policy. The only reason for confirming the duty is that the appellants have not submitted a Certificate to show that the goods have been used for manufacturing the goods for export. In absence of any such condition specified in the Notification, we are of the view that the Appellants cannot be held liable for payment of duty. They were eligible to clear the goods without payment of duty to a person holding a duty free import licence against an advance release order issued by the Licensing Authority. Once they have issued the goods against the advance release order, no duty liability can be imposed on them for not-submitting the end use Certificate which is not the specific condition in the Notification. The Appellants have relied upon the decision in the case of J. Shakti Chemicals v. Commissioner of Central Excise, Rajkot 2002 (144) ELT 196 (Tri) wherein it has been held by the Tribunal that “it has been the consistent view of the Tribunal and the Court in the absence of any such requirement in the Notification the exemption contained in it, cannot be made conditional upon the end use Certificate.”
Thus, we set aside the impugned order and allow the Appeal