9911796707
TMI Blog2007 (9) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... ives of the company, as mentioned in the opening portion of this order, had also earlier filed applications as co-applicants. The application was considered by the Commission earlier and Admission Order No. 23/2006-C.Ex., dated 5-4-2006 [2007(220) E.L.T. 535 (Sett. Comm.)] was issued. In the application, the applicant had admitted only a sum of Rs.89,58,603/-. In the Admission Order referred to above, the applicant was directed to pay the balance admitted duty liability after adjusting Rs.50 lakhs paid earlier. In the mean time, the applicant filed a Miscellaneous Petition, seeking nine instalments after paying Rs.9,45,598/- out of the balance admitted duty of Rs.39,58,603/-. The applicant, was given time till September 2006, in terms of Miscellaneous Order dated 30-6- 2006. Further, vide Miscellaneous Order dated 27-10-2006, the applicant was granted time till December 2006 to pay the balance amount. The applicant again filed another Miscellaneous Petition after paying only an amount of Rs. 3,98,480/-, seeking further two months time to pay the balance amount and be fore this petition could be taken up for hearing, the applicant sent a letter dated 9 February 2007, indicating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007, indicating that they had remitted the entire amount as per the Admission Order by February 2007, whereas it should have been paid by December 2006. The advocate requested that the delay of two months in paying the duty due may be condoned by the Bench. As regards the merits of the case, the advocate stated that the main point of dispute is as to whether the benefit of exemption available vide Notification No. 8/97-C.E., dated 1-3-1997, should be applied or not. The advocate stated that as per this notification, the duty payable would only be equal to the Central Excise Duty applicable on goods removed, if the goods were manufactured using indigenous raw material and allowed to be sold in India as DTA clearance and that the duty applicable shall not be equal to Customs duty, as per proviso to Section 3(1) of the Central Excise Act, 1944, which is the contention of the department. It was stated that the goods in the present case had been manufacture out of indigenous raw material and the capital goods used for the manufacture were also indigenous and in this connection, the advocate referred to a certificate to this effect, dated 19-1-2001, given by the Superintendent of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en manufactured in a DTA and accordingly the benefit of Notification No. 8/97-C.E. would be applicable and the Customs Valuation Rules need not be applied. By quoting the above decision, the advocate stated that although the above position was in respect of valuation, the same analogy could be made applicable for the rate of duty and, thus, in the present case, the benefit of Notification No.8/97-CE. should be made applicable. The advocate also invited the attention of the Bench to a letter dated 27-8-2005, issued on behalf of the Development Commissioner, MEPZ, wherein it had been stated that the Letter of Permission (LoP), dated 26-2-1997, to setup an EOU for manufacture and export of aluminium conductors by the applicant had expired on 25- 2-2000 and that the applicant had not come forward for extending the validity. Accordingly, it had been stated that the validity of LoP to this unit had lapsed and it was no more an EOU. Thus, the advocate stated that the unit had ceased to be an EOU with effect from 25-2-2000 only and that the manufacture and clearance of items in the present case was in March 2000 and, thus, it could not be treated that the goods were manufactured in an EOU. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower duty as compared to the goods cleared to DTA on permission. Therefore, considering the above, it was argued that only Customs duty should be applied for the clearances and not the Central Excise Duty. Besides, the revenue representative opposed grant of immunity from interest, penalty and prosecution. 7. The Bench has considered in detail the facts and circumstances of the case and various arguments put forth by both the parties during the hearing. The main point to be decided by the Bench is as to what rate of duty should be applicable to the clearances made by the applicant, i.e., whether the duty chargeable should be only be the Central Excise Duty in terms of Notification No 8/97-C.E. or it should be Customs duty applicable in terms of proviso Section 3(1) of the Central Excise Act, 1944. After careful examination of the various aspects involved, the Bench observes that in this case, the final product manufactured was from indigenous raw material. Besides, the capital goods used in the manufacture were also indigenous. The only aspect that remains in the present case is that the goods were removed without permission and without following the necessary procedures and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944, and an amount of Rs.89,58,604/- under Section 11D of the Act. It is observed that the demand of Rs.2,76,46,994/- also includes the amount of Rs.89,58,604/-, and, hence, such a sum cannot be demanded twice on the same goods. However, in this case, the final duty liability to be discharged by the applicant is only Rs.89,58,604/-, as discussed earlier, and the same had been discharged by the applicant. 8. This is a case of clandestine removal by the EOU with utter disregard to various procedural formalities required to be followed by an EOU for DTA sales. Besides, it is observed that this is a case wherein the confidence which is reposed by the policy of the Government on an EOU that the unit would export the goods and if any DTA sales are made, they would be as per provisions of the policy with due permission, wherever required to be taken, is taken properly. The Bench observes that such a confidence which is reposed on the EOU has not been honoured by the applicant. Besides, the Bench also notes that the applicant had collected the duty Central Excise Duty of Rs.89,58,604/-, from the Customers for the goods removed on DTA sales to various Electricit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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