TMI Blog2011 (2) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... more duty equal to 50% of each of the aggregate duties of customs on like goods imported into India in terms of Notification 2/95. decided in favour of Assessee. - E/1315/03 - - - Dated:- 9-2-2011 - Mr. Ashok Jindal, Mr. P.R. Chandrasekharan, JJ. Appearance: Shri N.A. Sayyad, JDR for the appellant Shri M.H. Patil, Advocate for the respondent Per: Mr. P.R. Chandrasekharan, Member (Technical) This is a departmental appeal filed against the order in original no. 3/VPS/32/2002/MIII dated 27.2.2002 passed by the Commissioner of Central Excise, Mumbai III. 2. Briefly stated the facts of the case are as follows: The assessee, M/s Global Hold Pvt. Ltd., Thane Dist. are a 100% EOU manufacturing polyester tops, wool tops ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11AC of the said Act and also under Section 173Q of Central Excise Rules, 1944 and also proposing to recover interest under Section 11AB of the Central Excise Act vide show-cause notice dated 13.9.2001. 4. The said case was adjudicated by the Commissioner of Central Excise, Mumbai III vide OIO no. 3/VPS/32/2002/MIII dated 27.2.2002 dated 5.3.2002. After hearing the party, the Commissioner came to the following conclusions:- "55............... I find that the assessee was first given the authorisation (so called permission) by the Development Commissioner on 3.9.98 for clearance of Wool Noils/Tops. Then on 24.12.98 to clear Worsted Yarn/grey fabrics. Accordingly, the said authorisation continued to be issued right upto 18.4.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion is required. In the instant case, the duty demand on Wool waste/scrap is on the ground that the assessee had not obtained the permission from Proper authority to clear the same into DTA, therefore, concessional rate of duty is not available to them. I find that the total clearances of wool waste by the assessee is less than 5%, therefore, no prior approval was required. As such, the concessional rate of duty cannot be denied to them. 57. In view of the foregoing discussions, the picture that emerges regarding the law laid down on this issue is that no prior permission is required for clearing the goods into DTA for availing concessional rate of duty under Notification no. 2/95-CE. The meaning that can be assigned to the term 'a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omply with all the condition of the scheme including those stipulated in the customs and excise Notifications. 6. Ld. DR submits that as per the decision given in Goyal Synthetics P. Ltd. vs. CCE Surat 2009 (233) ELT 65, DTA clearance under Notification 2/95 requires prior permission of the Development Commissioner to be actually eligible for the concessional rate of duty under the said Notification. Similarly, in the case of CCE Vishakpatnam vs. NCC Blue Water Products Ltd. 2010 (258) ELT 161 (SC) it has been held that if no permission is obtained from the Development Commissioner for clearance into DTA, then the goods sold will be liable to excise duty under main section 3(1) of CEA 1944. The ld. DR also relies on the judgement in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clear worsted yarn/grey fabrics. The said authorisation continued to be issued right up to 18.4.2001 for the various products manufactured by the assessee and also specified the entitlement of assessee to clear specified quantity of goods. It is not a case where the assessee exceeded the limits of entitlement. Merely for the reason that there was a gap in obtaining the authorisation/permission for certain periods between two authorisations/permissions from the Development Commissioner, the benefit of Notification 2/95-CE cannot be denied. As regards wool waste and scrap, the Commissioner has rightly observed that as per 9.30 of the EXIM policy the assessee was entitled to clear the same into the DTA to the extent of 5% and the quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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