TMI Blog2003 (10) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants against the common order-in-original dated 27-2-2002/26-3-2002 vide which the Commissioner has confirmed the duty with penalty on company appellant No. 1 and also imposed penalty on its Director, appellant No. 2. The facts are not much in dispute. 2. The appellant No. 1 company is a 100% Export Oriented Unit engaged in the manufacture of cotton grey knitted fabrics falling under sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts proviso. The Larger Bench of the Tribunal in M/s. Himalaya International Ltd. v. CCE, Chandigarh - 2003 (154) E.L.T. 580 (Tri. - LB) = 2003 (56) RLT 842 has taken the view that where clearances by 100% EOU had been made in DTA without permission of the competent authority, the assessee is liable to pay duty under the proviso to Section 3(1) of the Act. But the learned Counsel has brought to our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the duty payable by the company appellant No. 1, would be under the main Section 3(1) and not under the proviso appended to that Section. The impugned order being contrary to this, for having confirmed the duty under proviso to Section 3(1) of the Act cannot be sustained and deserves to be set aside. 4. Consequently, the impugned order of the adjudicating authority is set aside. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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