Raju ORDER
Ramesh Nair, Member (J)
1. The issue involved in the present appeal in brief is that the Appellant has not paid National Calamity Contingent Duty on Polyster Filament Yarn during the period 01.06.2003 to 30.04.2004 cleared to 100% EOU and that cleared for captive consumption. They were issued show cause notice dated 30.06.2004 for recovery of same. The demand was confirmed against them vide impugned order dated 29.06.2009. Hence the present appeal.
2. Ld. Counsel Sh. P.M. Dave appearing for the revenue submits that the supplies made to 100% EOU are in the nature of export under Bond as allowed under rule 19 of the Central Excise Rules, 2002. He also relies upon judgments in case of Filatex India Ltd. MANU/CS/0070/2014 : 2014 (302) ELT 446 (TRI), JBF Industries Ltd. 2009 (246) ELT 286 (TRI), Modern Petrofils 2009 - TIOL - 515 - CESTAT - AHM and Tata Trucks India Ltd. 2008 (227) ELT 269. He further submits that the clearances to EOU are exempted by virtue of Notification No. 22/2003 - CE dated 01.03.2003. In respect of clearance for captive consumption he submits that notification No. 67/95 - CE dated 16.03.1995 has been issued under Section 5A of Central Excise Act is applicable to NCCD also since it is surcharge and hence in the nature of excise duty only. He relies upon judgment in case of Bajaj Auto Ltd. MANU/SC/0417/2019 : 2019 - TIOL - 127 - SC - CX, SRD Nutrients Pvt. Ltd. MANU/SC/1407/2017 : 2017 (355) ELT 481 (SC) and Banswara Syntex Ltd. 2017 (216) ELT 16 (RAJ.)
3. Per contra Sh. Deepak Kumar, Special Counsel appearing for the revenue submits that exemption is not available. He supports the impugned order that exemption notification is not applicable to NCCD. The revenue has relied upon the tribunal's order in case of Superfine Syntex Pvt. Ltd. MANU/CS/0017/2009 : 2009 (237) ELT 292 (TRI) and Paras Petrofils MANU/CS/0015/2009 : 2009 (237) ELT 367 (TRI).
4. Heard both sides and perused the records. We find that the issue is no more res-integra in the light of judgments cited by the Ld. Counsel for the Appellant. The Hon'ble Apex Court in case of M/s. Bajaj Auto Ltd. MANU/SC/0417/2019 : 2019 - TIOL - 127 - SC - CX has held that exemption of excise duty would be applicable to NCCD also as the same is surcharge. Further in the light of judgments cited supra by the Ld. Counsel for the Appellant we hold that the demand of NCCD on goods cleared for captive consumption and to 100% EOU is not sustainable.
5. We thus set aside the impugned order and allow the appeal with consequential reliefs to the Appellant.
(Pronounced in the open court on 26.06.2019)
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