- (1.) This appeal is by the revenue challenging the order passed by the Tribunal, 2009 (240) E.L.T. 51 (Tribunal) which held that Notification No. 22/2003 applies to the facts of this case and therefore the Assessee is entitled to the refund of the duty paid under protest.
(2.) The Assessee is M/s. Solectron Centum Electronics Ltd. The Assessee cleared certain machinery viz. capital goods, which were imported for the use of the DTA unit on payment of duty. The CENVAT credit was taken on those goods and were removed under the CT-3 procedure by availing the benefit of Notification 22/2003 dated 31-3-2003, which is not excisable. However, when the Department insisted on payment of duty, they paid the duty 'under protest'. Thereafter the original authority rejected the refund application filed by the Assessee for an amount of Rs. 22,21,477/-. Aggrieved by this order, the Assessee preferred an appeal to the Tribunal contending that the capital goods were removed to their EHTP premises under the CT-3 certificate issued by the Department. But the departmental authorities compelled them to pay the duty on the capital goods because they had initially availed the CENVAT credit and under protest, the Assessee paid the duty and later claimed for refund of the same. The Original Authority rejected the refund claim on the ground that Notification No. 22/2003 cannot be availed in respect of the imported goods and that CT-3 procedure can be adopted only for goods, which are directly received from the factory. Aggrieved by this, the Assessee approached the Commissioner (Appeals) who on upholding the order of the lower authority has held the clearance of goods under CT-3 certificate from the domestic unit to EHTP unit is not legitimate. Aggrieved by this order, the Assessee approached the Tribunal. Accepting the said case, the Tribunal held that Notification No. 22/2003 is applicable as the goods have been removed only after considerable use and as such, they were entitled for refund of the duly paid under protest. Accordingly, the Tribunal has ordered for refund of the duty paid under protest. Aggrieved by the said order, the revenue is in appeal.
(3.) The learned Counsel for the revenue assailing the impugned order contends that the Assessee is not entitled to the amount ordered to be refunded on the ground that the Assessee is not a manufacturer of the capital goods which have been imported in view of the fact that it does not satisfy the conditions imposed in the notification and as such, the order passed by the original authority is in accordance with law and the Tribunal has committed an error in not affirming the said order.;