TMI Blog2001 (3) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... acture of -PET bottles. For the manufacture of such bottles in the EOU they had imported, under the EOU scheme, machinery without payment of duty. Some indigenously manufactured, machinery were also received duty (Central Excise) free for the same purpose. In the same premises the appellant also set up another unit for manufacture and supply of PET bottles to the Domestic Tariff Area (DTA). After investigation, the Revenue Authorities alleged that the appellant had clandestinely manufactured and cleared into the domestic area without payment of duty, PET bottles from the EOU. It was also alleged that such clearances were falsely shown as the manufacture in the appellant s unit for DTA production. The impugned order confirmed the allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also submitted that the action of the Commissioner is contrary to instruction on the subject by the Central Board of Excise and Customs. He referred in particular to Circular No. 38/95-Cus., dated 17-5-1995 regarding monitoring of EOU s by the Department of Revenue. The learned Consultant submitted that an EOU is entitled to running a unit for production of goods for DTA also from the same premises. Thus, the entire functioning of the appellant was in conformity with the instructions. He further submitted that any action to wind up an EOU can be taken by the Development Commissioner for Export Processing Zone only. In the present case, by demanding duty on the imported goods, the Commissioner has in effect ordered the closure of the EOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r export production and had also received raw materials without payment of duty for export production, they had not carried out any export order. He submitted that after examining the entire evidence, the Commissioner had come to a clear finding that the DTA unit was only a facade for the purpose of carrying out clandestine activities from the EOU. He, therefore, submitted that the order is well founded and has been reached on a correct appreciation of evidence. 7. The appellants started production in May, 1997 as an EOU. They have also obtained permission from the competent authority for clearance of their trial production to the domestic area. The appellant s facility for domestic production has been set up with the full knowledge of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only be treated as cum-duty price. This is equally so in respect of clandestinely manufactured goods also. The Commissioner was therefore, clearly in error in demanding duty after treating the sale price as assessable value. Therefore, the duty demand is required to be re-computed after determining the correct assessable value. The appellants had rebutted the allegation of clandestine manufacture of goods in the EOU. The evidence produced by them has also not been fully weighed before passing the impugned order. In these circumstances, the entire case is required to be readjudicated after giving the appellants an opportunity to present their case. 8. In view of what has been stated above, the impugned order inasfar as it relates to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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