TMI Blog2009 (12) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... he is unable to appear due to personal work, the letter does not disclose any other ground for adjournment of the matter. The matter relates to the year 2005. In the circumstances, we are not inclined to adjourn the matter, as no cogent reason is disclosed for adjournment. 3. The appellants challenge the order dated 19.08.2004 passed by the Commissioner (Appeals), Bhopal whereby the appeal filed by the respondents against the order of the adjudicating authority has been allowed and the modvat credit to the tune of ₹ 16,66,361/- has been allowed. The adjudicating authority namely Assistant Commissioner of Bhopal under its order dated 17.09.98 had disallowed the modvat credit to that extent and had imposed penalty of ₹ 5 lakh b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of first proviso of to the Notification No. 5/95-CE. As per first proviso of this Notification, credit shall be restricted to the extent of duty which is equal to the additional duty leviable on like goods. 4.2 The above clarification of CEGAT is squarely applicable in this case. In the instant case the additional duty of customs leviable on like goods if imported into India calculated to be ₹ 3185758/- whereas the appellant has taken credit of duty only amounting to ₹ 3096900/- (Rs.1430539/- plus ₹ 1666361/-) which is lower than the duty actually paid by the 100% EOU as well as limiting factor imposed in the Notf. No. 5/94-CE(NT) dated 01.03.94. Therefore modvat credit of duty total amounting to ₹ 30969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find any substance in this view of the Revenue. The clearance of the goods by 100% E.O.U. are not import in the terms in which it has been defined under Section 2(23) of the Customs Act, according to which import, with its grammatical and cognet expression means bringing into India from a place outside India. This is also apparent from the fact that when the goods are cleared from 100% E.O.U. to any place in India, central excise duty under Section 3(1) of the Central Excise Act is levied and not the customs duty under the Customs Act. If it is to be regarded as import, then the duty has to be charged under Section 12 of the Customs Act, read with Section 3 of the Customs Tariff Act. The Revenue, it seems is confusing the measure of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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