TMI Blog2007 (9) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... cant had earlier filed an application dated 30-11-2005, for settlement of proceedings initiated under Show Cause Notice No. 50/2004, dated 30-9-2004, issued by the DGCEI, Chennai Zonal Unit, proposing to recover Rs.2,76,46,994/-, in respect of clearances of ACSR conductors manufactured by them for various State Electricity Boards, under commercial invoices, without payment of duty on the goods. In addition, four executives 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and co-applicants, submitted that in compliance with the Admission Order No. 23/2006-C.Ex., dated 5-4-2006, the applicant had paid Rs.89,58,604/-. In this connection, the applicant had earlier filed a Miscellaneous Application after paying only an amount of Rs.3,98,480/- seeking two months time to pay the balance, and before this Miscellaneous Application could be taken up for hearing, the applicant sent a letter dated 9-2-2007, 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 equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sister units, no sale was involved and the valuation of the goods cleared was done under Rule 8 of the Central Excise Valuation Rules. In this case, the department had stated that the assessable value could not be determined under Central Excise Valuation Rules and the assessable value should be based on the export price of similar goods. However, the Honourable Tribunal held that the goods manufactured by an EOU would be deemed to have been 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- 2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Larger Bench of the CEGAT in the case of M/s. Himalya International Limited v. CCE Chandigarh , vide their Miscellaneous Order No.101/2003(NB)(A), dated 22-5-2003 [2003 (154) E.L.T. 580 (Tri.) = 2003 (56) RLT 842], where in it had been observed, inter alia that if the treatment to goods cleared with or without permission is the same, then, it would amount to a situation wherein the goods cleared illegally without permission shall end up paying 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 8/97 and the duty amount of Rs.89,58,604/- involved had since been discharged. The Bench has also considered the delay of two months in discharging this. However, considering the amount involved and co-operation extended by the applicant, the delay of two months in paying the same is condoned and the payment regularized in terms of the Admission Order. Incidentally, in this case, the Show Cause Notice had demanded Rs.2,76,46,994/-, under proviso to Section 11A 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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