Judgment

Kapadia, J.—The issue in this civil appeal filed by the department under section 35L(b) of the Central Excise Act, 1944 relates to the eligibility to the benefit of exemption under Notification No. 123/81-CE dated 2nd June, 1981, as amended.

2. M/s Ginni Filaments Ltd. (hereinafter referred to for the sake of brevity as “the assessee”) is 100 Export Oriented Unit manufacturing filament yarn. The assessee was licensed under section 58 of the Customs Act, 1962 bearing Licence No. 1-Customs/90 dated 13.3.1990. The assessee was also granted L-4 licence for the manufacture of cotton yarn falling under Chapter 53.

3. The assessee made an application under notification No. 123/81 to the Competent Authority for removal of certain goods, under form CT-3, from 100 Export Oriented Unit to its factory, namely, A.C. Sheets, ­air-Conditioners, flush doors, typewriters, storewells, tables, chairs, which was granted.

4. On 2.1.1991, the department issued a show-cause notice calling upon the assessee as to why duty of Rs. 4,55,872.72 should not be recovered from the assessee for not using the goods, cleared under form CT-3 in the manufacture of cotton/filament yarn in their Undertaking.

5. By