9911796707
TMI Blog2015 (2) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ically produced silk fibre. The period of dispute in this case is from 199899 to 200001. During this period, a 100% EOU in terms of para 9.9 of the Foreign Trade Policy could make DTA clearances of the finished products and also rejects upto 50% of the FOB value of exports, subject to payment of applicable duties. However, for DTA clearances, fulfillment of the minimum NFEP (Net Foreign Exchange Earning) should have been positive. Though, proviso to section 3(1) of Central Excise Act, 1944, provides that in respect of DTA clearances by a 100% EOU, the central excise duty leviable would be equal to the duty of customs chargeable on the import of like goods into India and that if this duty is at an ad-valerum rate, the value of goods is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by them would also be fully exempt from duty. The Departments case against the appellant is that firstly DTA clearances would be liable for duty in terms of proviso to Section 3(1) of central Excise Act, 1944 and as such the duty chargeable would be the aggregate of the duties of Customs, chargeable on import of like goods into India and for this purpose, it is not relevant as to whether the same goods produce in DTA were fully exempt from excise duty or attracted nil rate of duty. It is also the Departments case that the Respondent are not eligible for notification No. 13/98-CE dated 02.06.1998, as under this notification the concessional rate of duty is applicable only if, the clearances into DTA are in accordance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, the entire duty demand was confirmed along with interest and penalty of equal amount under Section 11AC was imposed on the respondent company, besides the imposition of penalty on Directors and General Manager. However, when the matter reached the Tribunal, the Tribunal vide Final Order No. 364-368/04-B dated 10.10.2003 remanded the matter to the Adjudication Authority for de novo adjudication. In de novo Adjudication, the Commissioner vide order in original dated 25.02.2005 while holding that the appellant were liable to pay duty in respect of their DTA clearances, in question, without the benefit of notification Non 13/81-CE has held that the longer limitation period under proviso to section 11(A)(1) would not apply as the DTA Cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors of the Respondent Company under Rule 209A of the Central Excise Rules, 1944.. 1.5. In the review appeal the department has also disputed, the Commissioners decision to treat the price realised by the Respondent from DTA sales as inclusive of duty and permitting abatement of duty for determining the assessable value. 2. Though, the notice for hearing had been issued to the respondent well in time, none representing the respondent appeared. It is seen that on earlier occasion also whenever this matter had been listed, none representing the respondent had appeared. In view of this, so far as the respondents are concerned, the matter is being decided Ex-parte in accordance with Rule 21 of the CESTAT Procedure Rules, 1982. 3. Heard Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod and this is what has been challenged in the Revenues Appeal. However, we find that the Commissioner while holding that only normal limitation period of one year from the relevant date would be applicable and longer limitation period under proviso to Section 11AC, cannot be applied, has taken note of the facts that .- a) The DTA sales invoices bear the signatures of the Central Excise Officers indicating that the departmental officers knew that the DTA sales were being made at nil rate of duty and, b) The Respondent Company had written to the Department that they intend to clear the goods into DTA on payment of applicable duty which in their case is nil. 4.1. These facts are not disputed in the order issued by the Committee of Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there, the interest under section 11AB cannot be charged. Since, the elements for imposing longer limitation period are not present, in our view, there would be no justification for imposition of penalty on the General Manager and Directors of the appellant company under Rule 209-A as, for this purpose, there has to be evidence on record to show that these persons dealt with certain excisable goods in the manner specified in this rule while knowing that the goods are liable for the confiscation, while in this case there is no such evidence. 5. As regards permitting the cum duty benefit, in our view, the same was in accordance with the Apex Court judgments in the cases of CCE vs Maruti Udyog Ltd. reported in 2002 (141) ELT-3(SC) and CCE v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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