TMI Blog2017 (1) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... y an 100% EOU in DTA with out proper permission from the appropriate authority, for the period prior to the amendment to Sec.3(1) of CEA,1944 held 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 - appeal dismissed - decided against appellant. - Excise Appeal Nos. 2782, 2806 to 2812 of 2002, Excise Appeal No. 2216 of 2003 - Final Order No. 10159-10167/2017 - Dated:- 19-1-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Shri Rahul Gajera, Advocate for the appellant-assessee Shri Alok Srivastava, A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Fibre Ltd. Vs. Union Of India 2015 (315) ELT 193 (Bom.), observing since the issue involved is rate of duty Appeal lies before the Hon ble Supreme Court. 3. The Ld. Advocate submits that the issue now stands settled by the Hon ble Supreme Court reported as Sarla Performance Fibre Ltd. Vs. Commissioner of Central Excise, Surat-II 2016 (336) ELT 577 (S.C.) 2016. It is his contention that after considering all the points of law raised, their Lordship quashed the impugned Order of the adjudicating as well as the Tribunal, remanded the matter to the competent authority to compute the demand as per the main provision of Section 3(1) of CEA, 1944. 4. Ld. A.R for the Revenue does not dispute the said submissions of the Ld. Advocate. 5. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal but it has opined that parent judgment in SIV Industries Ltd. (supra) was distinguished by the Larger Bench and further the circular dated 5-1-2004 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 5-1-2004 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 decision in SIV Industries Ltd. (supra). The Technical Member who authored the judgment after the decision in NCC Blue Water Products Ltd. (supra) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken note of. The Tribunal should have appropriately appreciated that this Court was interpreting the statutory provision and it is also worthy to note that after the judgment delivered in SIV Industries Ltd. (supra) an amendment was 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. 37. In view of the aforesaid analysis, the appeals are allowed. 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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