Judgment

DHARMADHIKARI, J.

( 1 ) THESE appeals have been preferred by the commissioner of central excise, shillong representing the department of central excise to assail separate orders passed in appeals by the Customs Excise and Gold (Control) Appellate Tribunal, kolkata [hereinafter referred to as cegat]. The C EG AT by the impugned orders has rejected thet appeals of the department of central excise and held in favour of the respondent - The North-Eastern tobacco Company Ltd. [for short the company] that it is eligible for claiming exemption from payment of duty under the central excise notification] no. 32/99-CE dated 08. 7. 1999, issued under subsection (1) of section 5a of Central Excise act of 1944 [hereinafter referred to as the act].

( 2 ) (THE principal question raised by the learned counsel on behalf of the department of central excise is whether the unit or factory established by the company in export promotion industrial park [hereinafter referred to as EPIP] at Amingaon in north-eastern state of Assam can claim the status of a new industrial unit within the meaning of sub-clause (a) of clause 3 of the exemption notification dated 08. 7. 1999. It is not in dispute that all other conditions of the notification for claiming exemption from payment of duty are fulfilled and the company would be entitled to avail the benefit of the exemption notification, if the unit set up by it at Amingaon, answers the description of new industrial unit. The cegat by dismissing the appeals of the department of central excise has held that the respondent/company is entitled to claim exemption from payment of duty under the exemption notification and on that basis entitled to adjustment of duty already paid on the cigarettes manufactured in its factory and is also entitled to refund of duty for the period covered by the notification.

( 3 ) THE facts not in disputes are as under :- The respondent/company was granted industrial licence no. CIL: 128 (75) dated 01. 5. 1975 for setting up cigarette manufacturing unit at Sjjpukhuri, Guwahati in the state of Assam. , M/s Assam Industrial Development corporation [hereinafter referred to as AIDC] was the promoter and the major shareholder in the company holding more than 51% of the share capital As per the industrial licence, the factory was to be set up at Silpukhuri, Guwahati. The unit was, however, set up on the industrial plot allotted by AIDC at G. S. Road, bangagarh, Dispur, Guwahati. On 04. 3. 1991, AIDC entered into a disinvestment agreement which was duly approved by the government of India, ministry of industry, department of industrial development vide its letter No. 10 (7)/89- cl dated 26. 10. 1990. According to the terms of the disinvestment agreement, the existing industrial shed at Bangagarh was to be handed over to AIDC and the factory was to be relocated at a new location anywhere in the state of Assam. In accordance with the aforesaid disinvestment agreement duly approved by the government of India, the existing unit at Bangagarh was closed with effect from 15. 6. 1994. Encouraged by the declared policy of the state in the exemption notification dated 08. 7. 1999, the company set up a cigarette manufacturing unit in export promotion industrial park at amingaon, Guwahati in the year 1999 in which commercial production was commenced from 15. 12. 1999 After locating its manufacturing unit in the export promotion industrial park, amingaon, the company made an application for grant of a licence under the provision of the Industries (Development and regulation) Act, 1951. In its application for grant of industrial licence, the company made a request that the industrial licence which it possessed for the unit in operation in Bangagarh in joint collaboration with aidc be endorsed for the new location of the unit in the export promotion industrial park at Amingaonln response to the letter dated 25. 1 or 2000 of the company seeking endorsement of the same industrial licence for the new l