ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 109/92. dated 30-6-92 passed by Collector of Central Excise (Appeals), Cochin wherein he has held that Notification No. 217/86 had been amended benefit by Notification No. 33/92, dated 1-3-92, the benefit of Notification had been extended to final products cleared to Free Trade Zone or to 100% EOU. He has noted that it is clear from this notification that prior to 1-3-92, the benefit was not available to such goods cleared to 100% EOU.
2. Learned Advocate for appellants submits that this very issue pertaining to Notification No. 217/86-C.E., dated 2-4-86 as amended by notification No. 33/92, dated 1-3-92 having retrospective effect to the goods manufactured and cleared to Free Trade Zone or to 100% Export Oriented Units (EOU) has been decided in the case of Indian Aluminium Co. Ltd. v. CCE Cochin reported in 1995 (79) E.L.T. III (T). He submits that this judgment is squarely applicable to the facts of the present case and hence the appeal is required to be allowed.
3. Learned DR reiterates the departmental contention.
4. On careful consideration of the submissions, we notice that the issue is totally covered by the judgment cited supra. The findings given in paras 12 & 13 of the said judgment are reproduced herein below :
“12. We also agree with Id. ST. Advocate that the following words added by amending Notification No. 33/92-C.E, dated 1-3-1992 in bracket namely “other than those cleared either to a unit in a Free Trade Zone or to a 100% Export Oriented Unit”, is clarificatory in nature and such clarifica-tory notification has retrospective effect. [See CC v. Shaw Wallace & Co. Ltd. -1990 (50) E.L.T. 143] in view of the clarification issued by Ministry of Finance referred to the ERB’s order (supra).
We do not wish to go into the other aspects of the arguments placed before us in view of the findings arrived at by us, on the above lines. The impugned orders are set aside and appeals allowed.
P.K Kapoor, Member (T)
13. I have gone through the order recorded by Brother Shri Peeran. The finding that the benefit to exemption Notification No. 217/86-C.E., dated 2-4-1986 could not be denied in respect of Aluminium Billet used as intermediate product in the manufacture of Aluminium Extrusion cleared free of duty under Notification No. 123/81-C.E., dated 2-6-1981 and other notification relating to clearance of goods to units located in free trade zone is also supported by the Tribunal’s decision in the case of I.E.L. Ltd. v. Collector of Central Excise, Bombay reported in 1988 (35) E.L.T. 142, where in relying upon the decision of the Hon’ble Patna High Court in the case of Tata Yodogawa Limited and Anr. v. Union of India reported in 1987 (32) E.L.T. 521, it was held that appropriate payment of duty should also be taken to mean duty that ought to have been paid or contracted to have been paid and when duty in terms of an exemption notification is nil, such goods when cleared without payment of duty can be taken to be duty paid goods.”
5. In view of the Tribunal’s having decided the issue as above, the impugned order is liable to be set aside and we order accordingly. The appeal is allowed with consequential relief, as per law.
