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2006 (12) TMI 296 - CESTAT, AHMEDABADDenial of concessional rate of duty - clearances made by Export Oriented Units (100% EOU) - Customs duty provided under EPCG Schemes - HELD THAT:- Once Sec. 3A itself creates a legal fiction of levying customs duty and treating clearances by 100% EOUs at par with imports, the question of altering nature of levy and the exemptions by circulars does not arise. The Commissioner has totally misunderstood the circulars which made it abundantly clear that notifications applicable to units working under EPCG schemes shall be equally applicable to goods being procured from 100% EOUs. The emphasis on Sec. 5A of the Central Excise Act is totally misplaced. It refers to exemption notifications issued u/s 5A and not under the Customs Act. Therefore, the exemption notification issued under Central Excise Act cannot be made applicable to 100% EOUs unless specifically provided for in that notification. But the same cannot be applied to notifications issued under Customs Act where Sec. 5A of the Central Excise has no application what so ever. The three circulars issued by the Board in 1994, 1-12-2004 and May, 2005 make it very clear that the concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside all the three orders-in- original and allow the appeals of all the appellants.
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