11.1. The next question is whether the said goods exported by appeant are 'eubjectod to export duty' whereby the proviso to Sec. 54(3) ibid is attracted. The lower authority has examined this aspect and considered that the rate of export duty on iron ore pellets is Nil, however Nil rate of tax is also a rate of tax/duty: and that since the goods exported are covered under Second Schedule to the Export Tarif appended to the Customs Tariff Act, 1975 the said goods are to be considered as subjected to tax i.e., export duty; and hence, the exclusion under proviso to Section 54(3) is applicable, wherebythe appellant isnot eligible forrefundof unutilizedinput tax credit. 11.2. We do not find any flaw in the above reasoning and findings of the lower authority. That is, the statutory provision i.e, proviso to Sec.54 (3) ibid speaks of 'goods which are subject to export duty'. The phrase 'subject to export duty is equivalent to "leviable to export duty', in the given context. It is not denied that the goods exported are covered under the Export Tariff as being subject to i.e., leviable to export duty, though byan exemptionNotificationsuch export dutypayableisNIL.Itiswell-settledprinciple that goods being exemptedor chargeabletoNilrateof dutybyvirtueofNotifications etc., does not remove the goods from the category of those 'leviable to duty'.
