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TMI Blog2009 (10) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the period from 16-4-1999 to 31-10-1999 on payment of Central Excise Duty @ 16%. They also cleared goods manufactured in the EOU from 9-4-99 onwards. As per the RT-12 returns submitted for the months of April, 1999 to October, 1999, the appellants cleared 31,735.2 kgs of instant coffee from the stocks transferred to 100% EOU, having an assessable value of Rs. 46,76,187/- in terms of Section 4 of the Central Excise Act, 1944 (the Act) and paid duty of Rs. 7,48,190/- by debiting the Modvat credit account. Further, as per copies of the invoices, the appellants had cleared 8,408 kgs of instant coffee manufactured in their 100% EOU to DTA, during the above period, declaring the assessable value of Rs. 20,80,356/- in terms of Section 4 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as a DTA unit maintaining separate records as they had failed to substantiate that they had made any representation to the jurisdictional Central Excise authorities or to the Visakh Export Processing Zone authorities for their functioning in dual capacities of EOU and DTA unit. As the unit had converted itself into 100% EOU, in terms of Central Excise Rule 100H, the appellants were not entitled to utilise the Modvat credit balance. As the appellants had sold its finished goods in bulk packs which were further processed and used for individual consumption, such clearances could not be treated as retail sales under Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Therefore, the appellants had wrongly followed Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 77/99 utilisation of Modvat credit balance was denied. This circular had been issued in connection with balance of capital goods credit. In respect of clearances to DTA from EOU during the period 16-9-99 to 31-10-99, another show cause notice dated 30-3-2000 had been issued to demand differential duty of Rs. 10,52,881/- denying the benefit of Notification No. 8/97-C.E. The first two show cause notices were decided in favour of the appellants by the Commissioner (Appeals) vide O-I-A No. 2/2005 (G) C.E., dated 13-1-2006 holding that the goods in stock were liable to duty at DTA rates and utilisation of Modvat credit was in order. Vide Final Order No. 995 and 996 dated 24-8-2007 [2007 (218) E.L.T. 551 (Tribunal)], the Tribunal sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultaneously; therefore, demand of differential duty was not sustainable. Notice was hit by limitation, since there was no suppression of facts. The authorities had not followed the Board's Circular No. 122/95 dated 28-11-1995; the computation of differential duty was incorrect. 5. Vide the Final Order Nos. 995 and 996 dated 24-8-2007, the Tribunal had upheld the procedure followed by the appellants as regards the clearances of DTA unit stock. Revenue had accepted RT 12s for DTA unit and RT 13s for EOU unit relating to the same period as the assessee had functioned in dual capacity in terms of para 9.4 of Handbook of Procedures 1997-2002. The Tribunal had approved this dual functioning of the assessee. The lower appellate authority failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves made good the short payment of Rs. 6,68,784/- and Rs. 15,604/-. Therefore, demand on this ground cannot be sustained. 7. We find that the disputes decided relate to clearances made by the assessee during 9-4-99 to 31-10-99 and 16-9-99 to 31-10-99 (EOU). Irregularities in computation of duty paid on the clearances were gathered from the returns of the assessee. The allegations of short payment observed had been adjudicated and the dispute decided in favour of the appellant. Therefore, there could be no valid proceedings to demand further differential duty in respect of the same clearances after about four years of clearances. In the circumstances, we find that the impugned demands raised on the allegation that the appellant EOU ..... X X X X Extracts X X X X X X X X Extracts X X X X
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