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2011 (5) TMI 726 - AT - Central ExciseDemnd of duty and penalty - 100% EOU - Demand raised on the ground that fresh Mushrooms were classifiable under CETH 07095100 of the Central Excise Tariff attracting ‘nil’ rate of duty and are therefore excisable goods. - held that:- after the introduction of new Tariff, fresh mushrooms are covered under CETH 07095100. As submitted by the learned Jt. CDR, with which we agree, there is no dispute about the classification. Fresh mushrooms now attract NIL rate of duty and find place in the Schedule as observed above. Before 28-2-2005, fresh mushrooms were not covered in the Schedule and this was the case made out by the appellants also. Excisable goods - According to the assessee, the use of expression ‘as being subject to duty of excise’ contemplates actual levy and collection of excise duty. It was submitted that some amount should be leviable and collectable as excise duty and only in such a situation, goods can be termed as excisable goods. Where no duty is levied or collected because the rate of duty in the Tariff itself is NIL, then such goods cannot be treated as goods being subject to duty of excise. - Held that:- even if attracting nil rate of duty, the goods remain excisable and they do not become non-excisable. Therefore, just because the goods listed in the schedule attract nil rate of duty, it cannot be said that they become non-excisable. Therefore, the question of proviso going beyond the main section does not arise. Appropriate duty - held that:- the decision of Hon’ble Supreme Court, in the case of Dhiren Chemicals (2001 -TMI - 1709 - SUPREME COURT OF INDIA) would not be applicable to the present case - In that case, Hon’ble Court was concerned with the interpretation of the phrase “on which appropriate amount of duty of excise has already been paid”. Therefore, the Hon’ble Court interpreted the term “appropriate” and “has already been paid’. The Hon’ble Court was not at all concerned with the interpretation of the term “excisable goods”. Similarly, since we are not concerned with the term “suffered’ in this case, the other submissions made in that connection are also not relevant. Deeming Debonding of EOU - held that:- there is absolutely no legal provision anywhere for any deemed de-bonding. No evidence was shown to us that appellant applied to Development Commissioner for giving retrospective effect to the date of de-bonding. Further, the de-bonding permission is given in principle by the Development Commissioner and after the duties are discharged and certificate is issued by Customs, final de-bonding order is issued. While confirming the duty, penalty waived, matter remanded back for re-quantification of duty.
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