Judgment:
1. The appellants filed this appeal against the order-in-appeal, dated 11-4-1994 passed by the Collector of Central Excise (Appeals). Ld.
Counsel appearing on behalf of the appellant submits that appellant made an import of spectrometer and filed a bill of entry for warehousing to the Delhi Customs House. The bill of entry was assessed and passed duty free in terms of Notification No. 13/81-Cus., dated 9-2-1981 as the appellant unit was a 100% export oriented unit licenced to manufacture and export for furfural. Ld. Counsel submits that a show cause notice was issued on the wrong assumption. He submits that in the show cause notice the respondents alleged that the provisions of Notification No. 123/81-C.E., dated 2-6-1981 were not complied with by the appellants. He submits that this notification relates to the excise duty on the capital goods for export oriented units. He submits that in this case it is not disputed by the respondents that the appellant made an import of the goods. Therefore he submits that there is no dispute in respect of excise duty on the goods. He submits that in the show cause notice the allegations made against the appellant is that benefit of exemption Notification No. 123/81-C.E., dated 2-6-1981 is not available to the appellants which is in fact deals with the excise duty. But in the order-in-original the adjudicating authority also demanded the customs duty on the goods in dispute. He therefore prays that the appeal be allowed.
3. In this case M/s. Oswal Agro Furane Ltd. is a 100% export oriented unit and had imported a consignment of spectrometer. A show cause notice was issued to the appellant on the ground that the goods had not been used in the manufacture of articles solely meant for export as provided under Notification No. 123/81-C.E., dated 2-6-1981 as amended.
4. At the time of import, the goods were assessed by the Customs authority and benefit of Notification No. 13/81-Cus., dated 9-2-1981 was granted to the appellants as the appellants were registered as a 100% export oriented unit.
5. It is not disputed by the Revenue that appellant unit is not a 100% export oriented unit and the appellant had not made export of the goods. In view of this admitted facts, we find that the goods imported were cleared after granting the benefit of exemption under Notification No. 13/81, dated 9-2-1981. The notification provides exemption to imported capital goods used in 100% export oriented undertakings.
6. In the show cause notice, the allegation against the appellant is that they have not followed the provisions of Notification No.123/81-C.E., dated 2-6-1981 which relates to the exemption of excise duty on capital goods for export oriented undertakings. In the present case goods were imported and cleared by the Customs authorities after granting benefit of Notification 13/81-Cus., dated 9-2-1981. There is no allegation in the show cause notice that appellant violated the provisions of Notification No. 13/81-Cus., dated 9-2-1981. Therefore the demand of customs duty under Section 28 of the Customs Act is not sustainable.
7. In view of the above discussion, the impugned order is set aside and the appeal is allowed.