TMI Blog2010 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... e worked out on basis of Notification No. 55/2003-Cus, for goods supplied by EOU to EPCG licence holder. Held that - assessee not EOU, clarification not applicable. Demand with interest upheld. Clearance made with knowledge and approval of department because of wrong interpretation of law. Imposition of penalty totally unfair and not called for. - E/42-43/2006 - A/205-206/2010-WZB/AHD - Dated:- 17-3-2010 - S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J) Shri P.V. Seth, Advocate, for the Appellant. Shri R.S. Srova, JDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - Appellant is engaged in the manufacture and clearance of Textile Machinery Parts used in the spinning mills. During the period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods against EPCG licence at concessional rate of duty. Further, he submits that CBEC vide letter addressed to Export Promotion Council for EOUs dated 17-2-2005 clarified that restrictions regarding port of import in condition No. 5 of Notification No. 55/03-Cus., dated 1-4-2003 are not applicable in the case of supplies made by an 100% EOU to units in DTA against EPCG licences. (ii) Further, he also relies upon Para 8.3.2 of Handbook of Procedures, wherein it has been stated that for claiming exemption from payment of terminal excise duty, procedure prescribed by Central Excise authority shall be followed and therefore, no excise duty was liable to be paid. He also drew our attention to Para 5.3 of Foreign Trade Policy 2004-09 which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 100% EOU are liable to discharge excise duty and measure has to be derived from relevant customs notifications. Therefore, the clarification issued in respect of 100% EOU cannot be applied to DTA. In any case, clarification does not even say 100% EOU can clear goods without payment of Central Excise duty. We do not find decision of Tribunal in the case of Bhoruka Textiles Limited - 2007 (216) E.L.T. 640 (Tri.-Bang.), applicable to the facts of the present case. In that case, the issue before the Tribunal was whether the goods received under EPCG licence after invalidation from the manufacturer can be added to value of machinery imported for the purpose of examination of fulfilment of conditions in the EPCG licence. From the order it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot (sic) made against International Competitive Biddings, refund of terminal excise duty will be given. In the absence of any specific provision or exemption Notification and supplies made against invalidation of EPCG Licence, we cannot find fault with the demand for duty made by the lower authorities. Learned advocate also submits that deemed export is legal fiction created by law and therefore all the benefits which are extended to regular exports should be extended to deemed exports also. In this connection he cited the decision of the Hon'ble Gujarat High Court in the case of Commissioner of Income Tax v. Jaykrishna Harivallabhdas reported in ITR Vol-231 Page No. 108. While we fully agree with learned advocate that legal fiction has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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