TMI Blog2011 (6) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, i.e. 50% of each of the aggregate of duties of customs leviable, namely, basic customs duty (BCD) leviable under section 12 of the Customs Act, countervailing duty (CVD) leviable under section 3 of the Customs Tariff Act, 1975 and special additional duty of customs (SAD) leviable under section 3A of the said Customs Tariff Act and cess under the Textile Committee Act, order set aside and remit the case back to the adjudicating authority, appeal is allowed - E/943/10 - - - Dated:- 10-6-2011 - Mr. Ashok Jindal, Mr. P.R. Chandrasekharan, JJ. Appearance: Shri.Aqeel Sheerazi, Advocate for appellant Shri.H.B. Negi, SDR, for respondent Per: P. R. Chandrasekharan 1. This appeal and stay application are directed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to pay duty of excise equal to aggregate duties of Customs leviable on such yarn as follows:- a) Basic Excise Duty 35% advalorem b) Addition Duty (CVD) equal to Excise duty under Section 3 of the CTA, 1974 (also known as countervailing duty) 24% + 6% c) Special Additional Duty of Customs under Section 3A of the CTA, 1975 4% d) Cess under Textile Committee Act, 1963 0.05% Accordingly, a show-cause notice directing the appellants to pay a sum of Rs.33,57,944/- on their clearances during the period from 08/04/99 to 20/10/99 was issued. The notice also contained proposals for demand of interest and imposition of penalty on the appellant. 2.3 The appellant contended that as per Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of investigation, the Ld. Commissioner quantified the short payment of duty at Rs.14,26,643/-. He also imposed a penalty of Rs.5.00 lakhs on the appellants and also demanded interest on the duty confirmed under the provisions of erstwhile the Rule 173Q(1) (a) of the Central Excise Rules, 1944. The appellant is before us against the said order. 3. After hearing the arguments for the stay petition, we feel that the appeal itself could be disposed of at this stage. Therefore, after allowing the stay petition filed by the appellants, we take up the appeal for consideration and disposal. 4. Submissions of the appellant are as follows:- 4.1 Prior to 16/09/99, Notification No.2/95-CE dated 04/01/95 provided exemption in excess of 50% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 could be availed. The appellant also relied on the judgment of the Larger Bench of the Tribunal in the case of Fabworth (India) Ltd., Vs. CCE, Nagpur, 2002 (143) ELT 663 (Tri-LB) wherein it was held as follows:- Notification No. 2/95 prior to its amendment specifically granted exemption to the EOUs from levies in excess of the 50% of the duty leviable under Section 12 of the Customs Act, 1962. It is true that by the amendment to the proviso under Section 3(1) of the Central Excise Act an EOU on clearance from the DTA was made liable to pay basic Customs duty under Section 12 of the Customs Act, 1962 and additional duty of Customs under Section 3 of the Customs Tariff Act, 1975. Since the amendment has been given retros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/99, Notification No.2/95-CE dated 04/01/95 provided excise duty exemption on goods manufactured in an EOU and allowed to be sold in India in accordance with the provisions of Export Import policy, from so much of duty of excise leviable thereon under Section 3 of Central Excise Tariff Act, 1944 as was in excess of the amount calculated @ 50% of each of the duties of Customs, which would be leviable under Section 12 of the Customs Act, 1962. In accordance with the said Notification, what was required to be paid was only 50% of the aggregate Customs duty leviable under Section 12 of the Customs Act, which did not include the additional duty of Customs leviable under Section 3(1) of the Customs Tariff Act, 1975 (popularly known as CVD) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of customs leviable, namely, basic customs duty (BCD) leviable under section 12 of the Customs Act, countervailing duty (CVD) leviable under section 3 of the Customs Tariff Act, 1975 and special additional duty of customs (SAD) leviable under section 3A of the said Customs Tariff Act and cess under the Textile Committee Act. 8. In view of the foregoing, we set aside the impugned order and remit the case back to the adjudicating authority to re-determine the duty liability in accordance with law as discussed above and refund the excess duty paid, if any, by the appellants, in accordance with law. The penalty of Rs.5.00 lakhs imposed is also set aside. Thus the appeal is allowed in the above terms. (Pronounced in Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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