- (1.) This writ petition is directed against the order passed by the Joint Secretary to the Government of India, who, as a revisional authority, reversed the finding of the Commissioner (Appeals) in the case of the petitioner herein.
(2.) The brief facts, emerging on the face of record and gathered on the basis of arguments advanced by the Officer Incharge, appearing on behalf of respondents, are that the petitioner is a 100% export oriented unit (for short "EOU") and had been exporting 100% Cotton Teri Towel and had filed rebate claims against the said export which was initially sanctioned by the original authority. Against the sanction order of the original authority an appeal was preferred by the respondent-department before the Commissioner (Appeals) on the ground, amongst others, that the petitioner, being a 100% EOU, was not required to export the goods on payment of duty in terms of absolute exemption provided under the notification No.24/2003-CE dt. 31/03/2003 and hence, the petitioner is not liable for rebate claims. However, the Commissioner (Appeals) also upheld the order passed by the original adjudicating authority and rejected the appeal of the respondent-department. Subsequently, a revision petition was filed before the Central Government u/s 35EE of the Central Excise Act, 1944 (for short, the "Act of 1944"), inter-alia, objecting to the findings of the Commissioner (Appeals) and it was stated before the revisional authority that the exemption has not been granted absolutely and therefore, it was not mandatory for the assessee to avail the benefit of notification No.24/2003-CE dt. 31/03/2003. It was further submitted that from the plain reading of the aforesaid notification it is clear that no duty is chargeable on the goods manufactured and cleared from the EOU for export. The duty is chargeable only if the goods cleared to DTA. It was further submitted before the said authority that sub-sec. (1A) has been inserted in Sec.5A of the Act of 1944 on 13/05/2005 which stipulates that for the removal of doubts, it is hereby declared that where an exemption under sub-sec. (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods and since the appellant was not debonded till 14/02/2008, therefore, any any export made by them prior to this date would be deemed to have been made under the 100% EOU status and not that as DTA limit.
(3.) Before the revisional authority, the petitioner herein supported the order in appeal so also the order passed by the adjudicating authority and it was contended that the order, being legal and proper, deserves to be upheld. The Joint Commissioner, as a revisional authority, after elaborate discussion, came to the conclusion that since the petitioner being 100% EOU till 14/02/2008, was not required to pay any duty in terms of the absolute exemption provided under notification No.24/2003-CE and hence the rebate on such duty is not admissible and accordingly accepted the appeal of the respondent herein which is now assailed by the petitioner before us.;