TMI Blog2005 (3) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... ite being a 100% EOU, without the permission of the appropriate authority. The SCN proposes to demand a total duty of Rs. 1,82,08,410 (Rs. 1,00,88,536/-, on account of clandestine clearance charge and the balance towards the charge of undervaluation of the said clearances), as the said clearances were not allowed to be made by the competent authority in accordance with provisions of sub paragraphs (a), (b), (c) and (d) of Para 9.9 or 9.20 of Exim Policy 1997 to 2002. The SCN was adjudicated by the Commissioner vide his O-in-O No. 56/2003 dated 6-10-2003. This O-in-O has been set aside by CEGAT vide their Order No. 91/97/2004, dated 20-1-04 and remanded for de novo proceedings. 3. The applications were heard on more than one occasion on 4-2-2004, 28-4-2004 and 18-10-2004 (the last hearing fixed for 29-9-2004 having been adjourned on the request of the consultant. The applicant was represented by Shri Lakshmi Narayan Goyal, Consultant and the Revenue by Shri D. Navroji, Asstt. Commissioner. After the last hearing, the Consultant informed the Commission that the revised duty liability to be admitted is being worked out in consultation with the department and sought for a month s tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the duty leviable on all the goods cleared by 100% of EOU to Domestic Tariff Area, whether with permission or in excess of the permission by the appropriate authority, would be chargeable to duty as per the proviso to Section 3(1) of CEA. 6. Subsequently, in his submission on 28-4-2004, the Consultant revised the admitted duty liability upward once again to Rs. 17,79,480/-. When the Bench drew the Consultant s attention to the conflicting and differing views in various decisions on the instant subject, and hence whether the case should not be agitated for the legitimate correct interpretation of law before a forum more appropriate to decide on such questions of law instead of the Commission entrusted with settlement of proceedings, the Consultant volunteered to re-work their duty liability, though simultaneously reiterating that the applicant must be extended the benefit of effective rates of duty. However, on the subsequent hearing date (18-10-2004), the consultant prayed for some more time to consult his client on the admission or otherwise of the liability under proviso to sub-section (1) of Section 3 of the CEA. Time was granted till 30-11-2004, but the Consultant again s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set forth in the First Schedule to the Central Excise Tariff Act, 1985. However, as per the first proviso to the said sub-section, in respect of excisable goods produced or manufacture by a 100% EOU and allowed to be sold in India (which phrase has subsequently been modified with effect from 11-5-2001 to read as brought to any other place in India, i.e. without reference to whether allowed or otherwise), the excise duty to be charged is the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 or any other law for the time being in force on like goods produced or manufactured outside India, if imported into India. Vide notification 2/95-C.E. dated 4-1-1995 as amended, such goods allowed to be sold in India under, and in accordance with, the provisions of sub-paragraphs (a), (b) (c) (d) and (h) of Paragraph 9.9 or of paragraph 9.20 of the Export and Import Policy, 1st April, 1997 to 31st March, 2002, are exempt in excess of @ 50% of each of the duties of customs, which would be leviable under Customs Act, 1962 or any other law for the time being in force, read with any notification for the time being in force, on the like goods produced or manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench would not like to go into the merits of the applicant s plea for lesser duty liability on account of the interpretation of the provisions of Section 3(1) of CEA during the material time by various forums, which he can plead for and agitate in other alternative forum. However, the Bench is constrained to observe that the applicant cannot be allowed to knock at its door for the benefit of immunities and easy and quick settlement, even while not coming with clean hand and bona fide intention of correcting his mistake of clandestine clearance and omission to pay appropriate duty. 11. In this context, the Bench would like to recall that the Wanchoo Committee, whose recommendations, was the bedrock for the establishment of this Commission, had observed in their report that A rigid attitude would not only inhibit a one time tax evader or an un-intending defaulter from making a clean breast of his affairs, but would also unnecessarily strain the investigational resources .........We would, therefore, suggest that there should be a provision in law for a settlement with tax payers at any stage of the proceedings. Similarly, the Hon ble Madras High Court observed in the case of VMS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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