- (1.) The petitioner is an exporter. It exports parts of the machine to jute mills in Nepal. He says that he is entitled to central excise duty exemption. He had been granted such exemption during similar exports from April, 2003 to August, 2007. All of a sudden, by a letter dated 7th September, 2007, the Central Excise Department declared that it was not entitled to such exemption. The material part of the letter is as follows : "The above mentioned instruction for clearance of excisable goods under sub-heading No. 8448.90 from your factory at Nil rate of duty by virtue of notification No. 6/2002-CE dt. 1-3-06 are restricted to home consumption only. But the said exemption are not allowed for clearance of such goods at Nil rate of duty for export to Nepal, Bhutan or any other country".
(2.) Before I come to the question of exemption, it has to be determined whether export to Nepal is to be treated as clearance under the Central Excise Act. Further, whether the exemption announced under that Act is applicable to such clearance.
(3.) According to the circular issued by the Central Board of Excise and Customs, at Annexure P/10', Page-59 of the writ petition, these exports are to be so treated. Under paragraph-4 of the circular, it is provided as follows : "4. Procedure for export to Nepal : 4.1 The exporter is required to prepare five copies of Nepal Invoice. The goods shall be assessed to duty in the same manner as the goods for home consumption. The classification and rate of duty should be in terms of Central Excise Tariff Act, 1985 read with any exemption notification and/or the said Rules. The value shall be the "transaction value" and should conform to section 4 or section 4A, as the case may be, of the Central Excise Act, 1944. It is clarified that this value may be less than, equal to or more than the F.O.B. value indicated by the exporter on the Bill of Export".;