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TMI Blog2006 (8) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ining necessary permission. He states that in the case of Modern Denim Ltd. v. CCE, Ahmedabad - 2005 (191) E.L.T. 1174 (Tri. Mumbai), it has been held that such goods clandestinely cleared without permission is eligible to full exemption under Notification 125/84-C.E. (for the basic duty) read with Notification 174/84-C.E. (for additional duty), and that the Department's appeal to the Hon'ble Supreme Court in that case has been dismissed. Therefore, he argues that the ratio of the decision in the case of Modern Denim Ltd. (supra) is applicable to the facts of the present appeals and the same are required to be allowed. He also states that if the appeals are allowed on this issue, there is no need to argue on other issues involved in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We are unable to subscribe to the views expressed in these decisions at least for two reasons if not more. All these decisions do not constitute good law after the Larger Bench's decision in Himalya International - 2003 (154) E.L.T. 580 which interpreted the expression "allowed to be sold" occurring in the proviso to Section 3(1) of the Central Excise Act in the context of duty liability on goods unauthorisedly removed from an EOU. The Bench held that duty as prescribed in the proviso to Section 3(1) of the Central Excise Act is leviable on all goods manufactured in an EOU whether or not allowed to be sold. The expression used in Notification 125/84 is also "allowed to be sold". We are unable to persuade ourselves to give any interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court held in the case of British Airways relied upon by the Larger Bench in Himalaya International. The Bench observed "while interpreting the statute the courts are required to keep in mind the consequences which are likely to follow upon the intended interpretation. It has also been observed therein that it is the duty of the court to give a harmonious construction of a statute and that such constitution shall suppress the mischief and advance the remedy". The Bench held that so long as a 100% EOU continues as an EOU it will be within the proviso to Section 3(1) of the Central Excise Act. Mere violation of the permission in the matter of sale to DTA will not take it outside the proviso to Section 3(1) of Central Excise Act.' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein that the appellants' contention that the Larger Bench decision was set aside by the Hon'ble Supreme Court is factually not correct. 5. We thus find that in one case, the Division Bench has not followed the Larger Bench decision in the case of Himalaya International stating that it has been set aside by the Hon'ble Supreme Court whereas in the case of Sterlite Optical Technologies Ltd., another Division Bench has followed the Larger Bench decision of Himalaya International stating that the Hon'ble Supreme Court has not set aside the decision of the Larger Bench. 6. In view of the contrary decisions of two different Division Benches as to whether the Larger Bench's decision in the case of Himalaya International is applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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