9911796707
TMI Blog2012 (11) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... uct to be exported under the EOU scheme. Such inputs or capital goods, during the material period, could be procured duty-free either by way of import in terms of Customs Notification No. 52/2003-Cus., dated 31-3-2003 or from indigenous sources in terms of Central Excise Notification No. 23/2003. The respondent, during the said period, imported inputs duty-free under Notification No. 52/2003-Cus. ibid and also on payment of duty without availing the benefit of this notification. It is said that some of the indigenous procurements of inputs were also on payment of duty without availing the benefit of Notification No. 23/2003-CE ibid. During the relevant period (January 2008), the respondent cleared inputs 'as such' to their sister unit in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants are apt to the facts of the case and it is a settled law that duty paid by 100% EOU for clearance of goods into DTA is duty of excise only and there is no reason to interpret the same as Customs Duty. Of course, as per the proviso to Section 3(1) of the Central Excise Act, 1944 it is the aggregate of the duties of customs in accordance with the provisions of the Customs Act, 1962. With respect to determination of duty only the provisions of Customs Act, 1962 are relevant and there is no violation of Section 12 ibid nor penalty under Section 117 ibid could be imposed. The rule governing the clearance of goods by 100% EOU to DTA is Rule 17 of Central Excise Rules, 2002, as per which the appellants are required to issue invoice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records that the respondent was a DTA unit prior to December 2007. In this case, they had procured inputs and capital goods by way of import and also from indigenous sources and had taken CENVAT credit of CVD/Central Excise duty paid thereon. Apparently, it was out of such accumulated credit that the respondent made part-payment of duty on the inputs (imported duty-free under Notification No. 52/2003-Cus.) cleared 'as such' to the DTA unit. It is not deniable that such DTA clearances were made on payment of duty of excise which was calculated in terms of the proviso to Section 3(1) of the Central Excise Act. There is no dispute regarding the amount of duty so paid. According to the appellant, it was customs duty which was paid by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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