STERLITE OPTICAL TECHNOLOGIES Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) THE application for waiver of pre -deposit of duty of Rs. 29,15,445/ - arises out of the order of the Commissioner of Central Excise (Appeals), Aurangabad, who has upheld the adjudication order confirming the demand on the ground that the applicants herein who are engaged in the manufacture of optical fibre, had availed Cenvat credit of CVD on raw material such as chlorine and resin silica tubes etc. imported at concessional rate under Notification 21/2002 -Cus., and removed to a 100% EOU during the period from September, 2002 to August, 2003, without payment of the amount equal to Cenvat credit availed as required in terms of sub -rule (4) of Rule 3 of the Cenvat Credit Rules, 2002.

(2.) WE have heard both sides and find prima facie force in the submission that exemption under Notification 1/95 -CE., dated 4 -1 -1995 is admissible to them for the reason that as per the said notification, exemption is available if goods are removed to an EOU, and in the instant case the applicants were supplying the goods for use/manufacture in an EOU and further, prima facie, clearance to 100% EOU is deemed export under the Exim Policy and hence prima facie duty demand is not sustainable.

(3.) WE , therefore, waive pre -deposit of duty and stay recovery thereof pending the appeals.