V.K. Agrawal, Member (T)
1. This is an application by M/s. Winsome Yarns Ltd. for waiver of pre-deposit of Central Excise duty amounting to Rs. 2,63,950/- as confirmed by the Commissioner (Appeals) under the impugned Order dated 12.04.2000.
2. Shri Balbir Singh, Id. Advocate, submitted, that a show cause notice was issued to them for demanding the duty in respect of cotton waste cleared by them to Domestic Tariff Area; that the Additional Commissioner under the Adjudication Order No. 89/97 dropped the demand holding that the Cotton Waste cleared by a 100% Export Oriented Unit is exempted from payment of duty under Notification No. 8/96-C.E., dated 23.07.1996; that on appeal preferred by the Revenue the Commissioner (Appeals), under the Impugned Order set aside the Adjudication Order and confirmed the demand holding that a 100% EOU is to be treated as if it exists outside India and the duty is to be charged as if the goods are imported into India; that Notification No. 8/96 exempts such goods from the Central Excise duty only and in absence of clear cut exemption for duties of Customs, it cannot be stretched that the Notification allows exemption for basic customs duty and special customs duty. The Id. Advocate, further, submitted that the duty payable by a 100% EOU in respect of goods cleared to the Domestic Tariff Area is the excise duty which is equivalent the aggregate of the duties of customs on like goods manufactured outside India if imported into India; that as Notification No. 8/96 exempts the Central Excise Duty no duty can be charged from them; that goods cleared by a 100% EOU are not regarded as imported goods and as such no exemption Notification under Customs Act is required to be issued exempting the Customs Duty.
3. Dr. Ravinder Babu, Id. DR, countered the prayer by reiterating the findings of the Commissioner (Appeals).
4. We have considered the submissions of both the sides. A 100% Export Oriented Unit has to pay Central Excise Duty if the goods manufactured by it are removed to any place in India and duty payable by them is levied and collected under Section 3 of the Central Excise Act. Section 3 of the Central Excise Act provides that duty of excise, which shall be levied and collected on any excisable goods manufactured by a 100% Export Oriented Unit and allowed to be sold in India, shall be an amount equal to the aggregate of duties of Customs leviable on like goods when imported in to the Country. SI. No. 52.1 of the Table annexed to Notification No. 8/96 provides Nil rate of duty to all goods falling under Heading No. 52.02 of the Schedule to the Central Excise Tariff and manufactured by a 100% Export Oriented Unit and allowed to be sold in India. The applicants have thus made out a strong the prima facie case in their favour. Further, in their own case as reported in 2000 (115) E.L.T. 153 (Winsome Yarn Ltd. v. CCE, Chandigarh) and relied upon by the Commissioner (Appeals), does not appear to be applicable to the facts of the present case as the relevant Notification therein was 2/95-C.E. which provided a concessional rate of duty to the clearances made by 100% EOU to Domestic Tariff Area. Accordingly we waive the requirements of pre-deposit of the entire amount of duty and stay the recovery of the same during the pendency of the appeal.