ORDER
J.H. Joglekar, Member (T)
1. On hearing both sides prayer for waiver of pre-deposit of duty confirmed of Rs. 14,26,266/- was granted and the appeal was taken up for disposal with the consent of both sides.
2. The appellants supplied lubricating oils to foreign going vessels as ship stores in terms of Rule 13 of the Central Excise Rules, 1944 which permitted such export without payment of duty on appropriate bonds being filed. Although such exports were made under bond for a number of years vide three show cause notices it was alleged that the facility was not available and therefore demand for duty as mentioned above was made covering the period December, 1998 to December, 2000. The duties were confirmed by the Dy. Commissioner on the ground that in terms of Notification 44/94-C.E., dated 22-9-1994 lubricating oils was shown to be a commodity eligible for export under claim for rebate in terms of Rule 12. He observed that there was no specific notification under Rule 13 for export of ship stores under bond. In this belief he confirmed the duty as above. The assessees then filed an appeal. The Commissioner (Appeals) observed that ship stores were “deemed exports”. He further observed that earlier they were allowed export under Rule 13 but later the permission was withdrawn. For this observation he did not quote or cite any provisions. He admitted that the export under bond had continued for a long time. He reiterated the lower authority’s observation as regards the coverage of Notification No.” 44/94 and held that the assessees should have operated under Rule 12 by first paying duty and then claiming rebate and could not have operated under Rule 13. On his upholding the lower order this appeal has been filed.
3. We have seen Notification No. 44/94 under Rule 12. We have also seen Notification No. 48/94-CE., dated 22-9-1994 issued under Rule 13 under which exports of mineral oils as stores for consumption on board is allowed. This notification does not specify any particular goods but would cover all goods except those which are exported to Nepal and Bhutan. Certain additional conditions are prescribed with projects as reconditioning or provided as a ship stores to aircraft. There is no such limitation when they are supplied to foreign going vessels. Thus at the relevant time such exports as ship stores could be made under either of the Rule 12 or 13. Just because the notification issued under Rule 12 specifically refers to lubricating oils supplied as ship stores it did not mean that the coverage of the notification under Rule 13 was denied. The conclusion of both the original and appellate authorities that the goods being covered specifically under Rule 12 were not eligible for the benefit of Rule 13 is not based on any premise of law. There-
fore there is no prohibition for operating under Rule 13.
4. The appeal succeeds and is allowed. Appropriate relief to the extent available as per law.