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2017 (10) TMI 441 - HC - Central ExciseIssuance of Writ of prohibition - 100% EOU - finished products produced in a 100% EOU, sold in India as the DTA sales - N/N. 2/95-CE dated 04.1.1995, as amended - it is submitted that the finished products produced in a 100% EOU, when sold in India as the DTA sales, the duty amount payable is 50% of the customs duty including other duties like SCD and ACD respectively. The petitioner is stated to have paid a total sum of ₹ 74,35,252/- in terms of N/N. 2/95. The petitioner would state that they are not liable to pay SCD and ACD, which amount to ₹ 41,58,997/- - the petitioner seeks a Writ of Prohibition. Essentially, the petitioner would contend that the impugned show cause notice cannot be allowed to be proceeded further and the difference of levy on goods manufactured in a case of 100% EOU and that of the levy of goods manufactured and cleared by any other unit is significant, as, in the case of 100% EOU, it is on the goods allowed to be cleared and sold in India whereas in other cases, the levy is on the goods manufactured and removed. Held that: - The words 'allowed to be sold' in Clause (ii) of Proviso to Section 3(1) of the Act are relevant in this regard. The petitioner paid appropriate duty on the DTA sales on the goods allowed to be sold and consequently, there cannot be a further levy. Therefore, if the show cause notice is allowed to be proceeded further, it would go contrary to the charging provision namely Section 3 of the Act as applicable to 100% EOU. Scope of SCN - the impugned SCN is sought to be challenged on technical grounds without meeting the allegation as pointed out in the impugned SCN - Held that: - On a reading of the SCN dated 24.4.2002, this Court is of the view that such exercise cannot be done, as the legal position or for that matter the effect of Exemption Notification cannot be applied in the abstract, but are required to be applied to the facts and circumstances of each case. Therefore, however strong the case of the petitioner would be on legal grounds, while examining the applicability of the same, it is essential and necessary to go into the factual matrix. The allegation against the petitioner being one of irregularity in the availment of concession under the DTA sales furnishing inflated export sales, is purely a factual issue, which has to be agitated by the petitioner before the Adjudicating Authority. Whether or not there has been inflation and whether the respondent was justified in arriving at the actual NFEP at 3.95% is correct or otherwise, has to be thrashed out before the Adjudicating Authority. After the factual scenario becomes clear, then only a situation arises for applying the legal principle. Writ of Prohibition cannot be issued to prohibit the respondent from proceeding with the adjudication of the show cause notice dated 24.4.2002 - the writ petition is dismissed as not maintainable/ premature.
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