TMI Blog2010 (7) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... Ravindran, Member (J)]. - These appeals are filed by the Revenue against the Orders-in-Original Nos. 02 03/2009-C. Ex. dated 13-2-2009. The Respondent has also filed Cross Objections against the said appeals. 2.The relevant facts in brief that arise for consideration are : During the course of audit of the unit, it came to notice that they made clearances of the said products in the DTA and have discharged payment of duty claiming the benefit of notification No. 23/2003-C.E. dated 31-3-2003 as amended from time to time. As per the provisions contained in proviso to Section 3(1) of the Central Excise Act, 1944, the duty payable on the goods cleared into DTA by a 100% EOU is the aggregate of the duties of Customs leviable on like go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d orders on various grounds. It is his submission that the Adjudicating Authority has erred in coming to a conclusion that duty payable shall be determined exactly in the same manner as is done in respect of imported goods, which would imply that the exemptions under relevant Customs Notification and Excise Notification, if any, has to be given. It is his submission that the exemption granted under Notification No. 04/2006-C.E. dated 1-3-2009 is granted under sub-section (1) of Section 5A of the Act and a combined reading of Section 3(1) of the Act and the provisions of Section 5A indicate that the exemption granted under Notification 4/2006-C.E. is not available to the goods cleared to DTA by a 100% Export Oriented Unit. Such exemption has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd referred in their defence reply. I find that as per proviso to Section 3(1) of the Central Excise Act, the duties of excise charged on goods sold in DTA by a 100% EOU is equal to the aggregate of the duties of Customs leviable under the Customs Act, or any other law in force, on like goods produced or manufactured outside India, if imported into the country. In other words, the duty payable shall be determined in exactly the same manner as is done in respect of imported goods. This implies that for determining the duties of excise under proviso to section 3(1) of the Central Excise Act, 1944 on the goods cleared to the DTA by the EOUs, the exemption under the relevant Customs Notifications and Excise Notifications, if any, have to be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, additional duty for customs (CVD). It, therefore, follows that no CVD exemption will be available when reprocessed plastic materials are cleared in Domestic Tariff Area (DTA) by EOUs and EPZ units. In other words, the plastic processor EOUs/EPZ units are liable to pay, among other duties, excise duty equivalent to CVD payable on imported reprocessed plastic materials (e.g. plastic granules/agglomerates) in respect of their DTA clearances of such materials/goods." The Delhi Court relied upon the decisions of the Supreme Court in Hyderabad Industries [1999 (108) E.L.T. 321 (S.C.)] and Thermax Private Limited [1992 (61) E.L.T. 352(S.C.)] and held as under : "8. As observed in the aforesaid quoted portions by the Apex Court, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Limited v. Collector [1992 (61) E.L.T. 352(S.C.) and Varsha Exports v. UOI - 2000 (40) RLT 9 (Guj.) (c) Ratnagiri Textiles Ltd. v. Commissioner of Central Excise, Jaipur-II [2003 (161) E.L.T. 975 (Tri.-Del.) :- The CESTAT relied upon the earlier decision of the Hon'ble Gujarat High Court in the case of Varsha Exports and Others v. UOI and Others - 2000 (40) RLT 9 (Guj.) and letter F. No. 305/113/94-FTT, dated 19th February, 1998 of the Central Board of Excise and Customs, to hold that the additional duty of Customs (CVD) was payable at effective rate and not at tariff rate in the case of clearance of goods by an 100% EOU in the DTA. Appeal filed by the department in Supreme Court against the decision of the High Court, was dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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