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2016 (6) TMI 352 - SUPREME COURT

2016 (6) TMI 352 - SUPREME COURT - 2016 (336) E.L.T. 577 (SC) - Demand of duty and imposition of penalty - Section 11AC of the Central Excise Act, 1944 - Texturised Yarn - Clandestine removal of goods - 100% EOU - Non-fulfillment of obligation of export of finished goods and the goods have been cleared without permission of the competent authority - Appellant submitted that even if it is held that finished goods were removed by the assessee without requisite permission from the Development Commi .....

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oner of C.Ex. Chandigarh [2003 (5) TMI 79 - CEGAT, NEW DELHI]. There was no justification for distinguishing the decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was brought to the notice of the tribunal has absolutely improperly noted that the circular dated 05.01.2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the bas .....

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n consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products Ltd. (supra) has given the stamp of approval to the circular. It is a binding precedent on all the courts and the tribunals under Article 141 of the Constitution of India. The Larger Bench of the Tribunal, as stated earlier, could not have distinguished the judgment in SIV Industries Ltd. (supra). The later circular issued on 05.01.2004 on which reliance was placed by the revenue b .....

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brought into the provision. Therefore, the transaction prior to the date of amendment would be governed by SIV Industries Ltd. (supra) which has been followed in NCC Blue Water Products Ltd. (supra). Be it clarified that we are not concerned with the amended provision in this case. - Therefore, the judgment and order passed by the tribunal and that of the adjudicating authority are set aside. The assessee shall be liable to pay the excise duty as per Section 3(1) of the Act. The competent au .....

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nthetic yarn and for that purpose it has a factory at Unit-I, Survey No. 59/1/14, Amli, Piparia Industrial Estate, Silvassa (U.T. of D.N.&H). The said factory is a 100% Export Oriented Unit (EOU). Prior to 6th November, 2006, Sarla Performance Fibers Limited was known as Sarla Polyesters Ltd. Shri Madhusudan Jhunjhunwala and Shri Satish Kumar Sharma were the Chairman and the excise in-charge respectively of Sarla Performance Fibers Limited. Shri Dineshchandra Pandey was the dispatch in-charg .....

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ed yarn, nylon covered yarn and polyester covered yarn. A show cause notice No. V(Ch.54)15-6/OA/2000 dated 16th May, 2001 was issued by the Commissioner of Central Excise, Surat - II requiring the appellant to explain why central excise duty of ₹ 32,92,854/-should not be recovered on the texturised yarn allegedly removed by the appellants without payment of duty. The said show cause notice also required the appellants to explain why penalty should not be imposed under Section 11AC of the C .....

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ion No. 2/05 was allowed. 4. After the reply to the show cause notice was filed, the Commissioner of Central Excise, Surat-II, by his order-in-original no. 11/MP/2002 dated 21st March, 2002 (i) confiscated the seized nylon covered yarn weighing 245.980 kgs. valued at ₹ 1,72,186/- and appropriated a sum of ₹ 86,093/- which was given as bank guarantee; (ii) demanded ₹ 55,202.96 as differential duty on the confiscated goods which were released provisionally before the adjudication .....

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the extent the said order was adverse to it. The revenue also preferred an appeal before the tribunal as certain aspects were adverse to it. The tribunal referred the issue to the Larger Bench of the tribunal for consideration whether the goods cleared by the appellant were eligible for exemption under Notification No. 125/84 dated 26.05.1984. The Larger Bench vide order dated 03.08.2007 held that in case the goods cleared by the 100% EOU and sold in India whether with or without permission, the .....

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to Section 3(1) of the Act and exemption under Notification No. 125/84 shall not be applicable but granted some relief as regards the imposition of penalty. Resultantly, the tribunal vide order dated 15.11.2007 disposed of the appeal of the appellants and dismissed the appeal of the revenue. 6. As the facts would unfold, the appellants filed an application before the tribunal for recall of order dated 15.11.2007 in terms of judgment in J.K. Synthetics Ltd. v. Collector of Central Excise 1996 (8 .....

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rtain Appeals filed by the Petitioners and also there were certain Appeals filed by the Department. Mr. Desai, the learned Senior Counsel for the Respondents, has no objection if all the Appeals are heard together denovo including the Appeals filed by the Department since the Petitioners were not heard in the Appeals. The learned Counsel for the Petitioners also has no objection for the same. 4. Under the aforesaid facts and circumstances, both the impugned orders dated 21st April, 2008 and 15th .....

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ent to establish clandestine removal were the invoices issued by Hindustan Cotton Company; and that the appellant SPL is a 100% EOU and when case goods were cleared without permission of the Development Commissioner according to the department duty was payable under Section 3(1) of the Act and exemption was available under notification no. 125/84 CE. To sustain the stand, reliance was placed on SIV Industries Ltd. v. CCE & Customs (2000) 3 SCC 367. Be it stated that the reliance was placed o .....

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extended since the notification incorporated several conditions to be fulfilled and unless these conditions were fulfilled, exemption could not be allowed; that the benefit of cum-duty price could not be extended and invocation of a wrong section or rule in the show cause notice would not be a bar for imposition of penalty under the correct rule or section, and that appellant was not eligible for treatment of clearances under Section 3(1) of the Act. On behalf of the revenue reliance was placed .....

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question of SPL having recovered any cum-duty price from the customers in DTA did not arise. Further it was evident that the transactions had been made by SPL in the name of Hindustan Cotton Company and M.M. Sanghavi and the demands had been raised on the invoices raised. The transaction itself was artificial and no justification had been shown to treat the same as cum-duty price and, therefore, the decision of the Commissioner not to treat the price as cum-duty price deserved to be upheld. As r .....

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moval and consequent confirmation of demand of duty and imposition of penalty on various appellants but, however, as far as the present appellant was concerned, the learned Member opined that the entire realization made by M/s. Sarla Polyester Ltd. were required to be treated as cum-duty and as such, the benefit had to be extended to the appellant on the above count. She further observed that:- Admittedly no duty has been recovered by them from their buyers. When the duty is being subsequently d .....

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dyog Ltd. 2002 (141) ELT 3 (SC) , reproduced a passage from the same and opined that the entire realization was required to be considered as cum-duty-price and the benefit of the same had to be extended to the assessee and for the said purpose, the matter needed to be remanded for recalculation of the quantum of duty. As far as penalty is concerned, she concurred with the Member, Technical, but also opined that it required to be remanded for imposing penalty equivalent to the duty calculated on .....

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reported in 2002(141) ELT 3 applies to the facts of the present case or not and as to whether the benefit of the same is to be extended to the said assessee or not? c. Whether the matter is required to be remanded for quantification of the duty by treating entire realization as cum-duty price, as held by the Member (Judicial) or the appellant s plea on the above issue is required to be rejected by upholding the decision of the Commissioner not to treat the price as cum-duty price, as observed b .....

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761 : 2010 (258)_ ELT 161. Thereafter the matter was heard on another day and on behalf of the Bench, the learned Member, Technical passed the order. He took note of the stand of the revenue that ratio of the said decision was not applicable as it was based on the principle stated in earlier decision i.e. SIV Industries Ltd. (supra). The learned Member also took note of the fact that the Larger Bench of the tribunal had distinguished the decision in SIV Industries Ltd. (supra) which was relied u .....

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note as submitted by the decision of the present case, the Larger Bench had considered the Hon ble Supreme Court in case of SIV Industries Ltd. and had distinguished the same and reached the conclusion that in case of goods sold by 100% EOU in DTA, the assessment shall be made under proviso to Section 3(1) of the Act. 15. After so stating, the learned Member quoted copiously from the Larger Bench. We think it appropriate to reproduce the relevant part:- 14. We have considered the submissions. We .....

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in hardship faced in getting export order, sales in DTA up to 25% were permitted from the year 1984 but there was a clear intention to distinguish between such sales by the 100% EOU from the sales by domestic units other than 100% EOU and it was for this purpose that proviso to Section 3(1) and Notification 125/84 was introduced. Since there were only two modes of clearance in which the 100% EOUs could have cleared the goods i.e. one by export and the other by domestic sale after obtaining the p .....

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her on the date of removal the 100% EOU ceased to be 100% EOU and therefore the provisions relating to 100% EOU could not have been applied to them. For the same purpose we hold that exemption under Notification 125/84 shall not be applicable in respect of goods manufactured by 100% EOU but sold in India. 17. After reproducing number of passages from the Larger Bench, the learned Member observed thus:- 7. It may be seen that Larger Bench had considered the decision of Hon ble Supreme Court in ca .....

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had considered, all aspects and the history of 100% EOU, statutory provisions and precedent decisions to reach conclusion that duty is chargeable under proviso to Section 3(1) of Central Excise Act, 1944. 18. Being of this view, the Bench reiterated the difference of opinion and the questions framed thereunder. After the judgment was delivered by the tribunal, the appellant preferred W.P. No. 714 of 2011. The High Court noted the submissions of the learned counsel for the writ petitioners and op .....

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hat it was eligible to clear goods up to a certain specified limit after obtaining due permission from the Development Commissioner in terms of Export Import (EXIM) Policy read with Handbook of Procedure (HBP). It is the submission of Mr. V. Lakshmi Kumaran, learned counsel for the appellant that even if it is held that finished goods were removed by the assessee without requisite permission from the Development Commissioner, central excise duty is leviable in terms of Section 3(1) of the Act. I .....

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ld contend that the appellant which is a continuing EOU, was bound to export finished goods and as there has been non-fulfilment of the obligation and the goods have been cleared without permission of the competent authority, the appellants are liable to pay the duty as determined by the tribunal. It is his further argument that the assessee cannot be assessed under Section 3(1) of the Act but under the proviso as held by the tribunal. Learned senior counsel would submit that the decision in SIV .....

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3. Duties specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levied - (1) There shall be levied and collected in such manner as may be prescribed,- (a) a duty of excise on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable .....

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ount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Cus .....

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manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods excluding goods produced or manufactured in special economic zones specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule. .....

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, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). 23. Having noted the relevant provisions, it is apposite to appreciate what has been held in SI .....

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8.12.1991 was issued to the appellant for the purpose by the Secretariat for Industrial Approvals (SIA), Ministry of Industry, Government of India. On 08.09.1993 the appellant therein made an application to the Secretary, Ministry of Commerce, Government of India and sought debonding of its unit from 100% EOU, i.e., withdrawal from 100% EOU Scheme. By letter dated 18.10.1993 of the Ministry of Commerce it was agreed in principle to allow the appellant to withdraw from the 100% EOU Scheme subject .....

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f the said finished goods lying in the stock. The Revenue on the other hand contended that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods and with no customs duty being levied on the raw materials gone into the manufacture of finished goods. The Court encapsulated the issue by stating that the expression allowed to be sold in India appearing in the proviso to Section 3(1) of the Act was the bone of contention between the parties. The assessee contended .....

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held :- The contention of the Revenue is that permission to withdraw from the Scheme is itself a permission to sell in India, i.e., when the unit is permitted to debond, it would be deemed to have been permitted to sell the goods in India. But then permission to sell in India has to be in terms or in accordance with the provisions of the export-import policy. Permission to sell in India by 100% EOU consists of all those factors like value addition, fulfilment of export obligation, sale of a gen .....

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the import policy has to be given by the Development Commissioner in the Ministry of Commerce. The Board of Approvals and the Development Commissioner are two different authorities constituted for two different purposes. Permission to debond is a statutory function exercised by one statutory authority. On the other hand permission to sell in India is to be exercised by a different statutory authority. If reference is made to para 102 of the relevant import-export policy permission of the Develop .....

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e Act is applicable only to sales made up to 25% of production by 100% EOU in DTA and with the permission of the Development Commissioner. No permission is required to sell goods manufactured by 100% EOU lying with it at the time approval is granted to debond. 24. After so stating the Court noted the stand of the revenue that by debonding permission had been granted by BoA for selling the closing stock of finished goods in India. Negativing the said contention, the Court held:- By its applicatio .....

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the debonding letter of BoA cannot be construed as permission to sell in India. The argument of the Revenue that debonding assumes allowing all closing stock of the goods on the date of debonding to be sold in India would be stretching the matter a little too far. Conditions for sale of 25% of the finished products by EOU and sale of finished stock by a debonded 100% EOU on the date of debonding are different. 25. Eventually, the Court interpreting the provision and notification issued under th .....

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sable goods in a 100% export-oriented undertaking and who has been allowed by the proper officer to remove such excisable goods for being sold in India on payment of duty of excise leviable thereon. It will be thus seen that this Chapter V-A would not be applicable where EOU is outside the EOU Scheme after the unit is debonded. Under Rule 100-H, Rule 57-A and other Rules mentioned therein shall not apply to excisable goods produced or manufactured by a 100% export-oriented undertaking. Rule 57-A .....

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be leviable in terms of the proviso to Section 3(1) of the Act and, accordingly, it set aside the judgment of the tribunal and restored that of the adjudicating authority. 27. The aforesaid judgment of this Court was distinguished by the Larger Bench of the tribunal in Himalaya International Ltd. (supra). The Larger Bench referred to circular No. 618/9/2002-CX dated 13.02.2002 and ruled thus:- A reading of the above circular would show that it was issued pursuant to the decision of the Supreme .....

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tion reliance was placed on a decision of the Supreme Court in CCE, Vadodara v. Dhiren Chemicals Industries, 2002 (139) ELT 3 (S.C.). We find no merit in the above contention of the assessee. In CCE, Vadodara v. Dhiren Chemicals Industries the Supreme Court observed that regardless of the interpretation placed by it on the expression in the notification on which appropriate duty of excise has already been paid if there are circulars which have been issued by the Central Board of Excise & Cus .....

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decision of the Supreme Court will not be binding. 28. To appreciate the whole controversy in completeness, we may reproduce the said circular dated 13.2.2002:- Subject: Removal of goods by 100% EOUs to DTA - Non-levy of duty under Section 3(1) of Central Excise Act, 1944. I am directed to invite reference to Supreme Court s judgment in case of SIV Industries v. CCE [2000 (117) E.L.T. 281 (S.C.)] vide which the Apex Court had held that proviso to Section 3(1) regarding the duty chargeable on goo .....

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t has come to the notice of the Board that field formations are interpreting the judgment of Apex Court to the effect that if the goods cleared by EOUs are not allowed to be sold into India, the Section 3(1) of Central Excise Act, 1944 is not applicable and duty can be demanded under the provisions of Customs Act, 1962 only. Board has taken a serious view of this mis-interpretation. The provisions of Central Excise Act, 1944 shall apply to all goods manufactured or produced in India for which Se .....

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s in accord with the decision rendered in SIV Industries Ltd. (supra). The said circular while so indicating also clearly lays down the expression allowed to be sold has been replaced with brought to any other place with effect from 11.05.2001 vide Section 120 of Finance Act, 2001 (14 of 2001). The circular being in consonance with the decision in SIV Industries Ltd. (supra) and rightly so, it was absolute unnecessary on the part of the Larger Bench of the tribunal to say that this Court in SIV .....

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002-CX., dated 13-2-2002 - Removal of goods by 100% EOU to DTA - Clarification regarding levy of duty on removal of goods by 100% EOU to DTA. I am directed to draw your attention to Board s Circular No. 618/9/2002-CX., dated 13-02-2002 [2002 (140) E.L.T. T27] on the above subject wherein it was clarified that prior to 11-5-2001, the clearances from EOUs if not allowed to be sold in India, shall continue to be chargeable to duty under main Section 3(1) of Central Excise Act, 1944.This was based o .....

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cleared by 100% EOU to DTA whether in terms of permission granted or in excess of permission granted . In view of the said judgment of the CESTAT, it is now clear that all the goods manufactured by EOU and cleared into DTA before final debonding of the EOU shall be chargeable to duty under proviso to Section 3(1) of the Central Excise Act, 1944 and under no condition, goods produced in 100% EOU can be charged under main Section 3(1) of Central Excise Act, 1944. 3. In view of the above judgment .....

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seeds produced and removed by the assessee-respondent, a 100% export-oriented unit (EOU), in the Domestic Tariff Area (DTA) without the approval of the Development Commissioner, would be payable under Section 3(1) of the Act and not under the proviso appended thereto. The two-Judge Bench taking note of the fact that during the period 1994-1995 to 1997-1998, the assessee produced and sold 11,15,29,540 number of shrimp seeds and 48,365 kg of shrimps in DTA without obtaining the permission of the D .....

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uiring the assessee to show cause as to why duty of excise equal to aggregate of the duties of customs should not be levied under Section 3 of the Act read with Rule 9(2) read with proviso to sub-section (1) of Section 11-A of the Act and interest and penalty thereon. The matter was contested by the assessee and eventually the tribunal ruled in favour of the assessee. Before this Court, it was contended that since as per Note 1 of Section I of the First Schedule to the Customs Tariff Act, 1975, .....

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e assessee had sought permission of the Development Commissioner, who in turn had advised them to approach the SIA for permission to clear shrimps and shrimp seeds which, in fact, was granted and, therefore, they were required to pay duty under proviso to Section 3(1) of the Act. It was also urged that under the Exim Policy, an EOU is obliged to make exports of the entire production itself and not through any other entity. The Court posed the following question:- The core question for our consid .....

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f excise under Section 3 of the Act, the charging section, at the rates set forth in the Schedule to the Tariff Act. However, the proviso to the said section provides that the duties of excise on any excisable goods, which are produced or manufactured by a 100% EOU and allowed to be sold in India shall be an amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962. As aforestated, the controversy at hand is whether in the absence of .....

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imilar issue fell for consideration of this Court in SIV Industries Ltd. (supra) In that case, the assessee was a 100% EOU. Later on, they sought permission to withdraw from 100% EOU Scheme, for which the Ministry accorded the necessary permission. However, some of the goods lying in the unit were removed prior to the debonding. A dispute arose regarding the rate of duty payable on such sales. The plea taken by the assessee was that they were liable to pay duty under Section 3(1) of the Act toge .....

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said proviso. Interpreting the said expression, this Court held that the expression allowed to be sold in India used in the proviso to Section 3(1) of the Act is applicable only to sales made in DTA up to 25% of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. No permission was required to sell the goods manufactured by 100% EOU lying with it at the time the approval is accorded to debond. The Court opined that the goods having been s .....

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d with Appendix XXXIII of the Handbook of Procedures, an EOU may sell 50% of its production in value terms into a DTA only on issuance of a removal authorisation by the Development Commissioner. 20. In the instant case, admittedly at the time of sales of shrimps and shrimp seeds by the assessee in DTA, the Development Commissioner had not issued the requisite removal authorisation. Therefore, in view of the dictum of this Court in SIV Industries Ltd. (supra ), with which we are in respectful agr .....

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ger Bench and further the circular dated 05.01.2004 was not taken note of by this Court in the subsequent judgment. On a careful scrutiny of the authority in NCC Blue Water Products Ltd. (supra), we are of the considered opinion that it concurs with the view expressed in SIV Industries Ltd. (supra). The circular dated 05.01.2004 came into existence after the Larger Bench decision in Himalaya International Ltd. (supra). We have already stated that there was no justification for distinguishing the .....

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dustries Ltd. (supra). It has been clearly opined that the expression allowed to be sold in India used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. 36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water Products .....

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