TMI Blog2017 (2) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... a 100% EOU. Being 100 % EOU they imported goods without payment of duty for use in the manufacture of final product. The part of the imported goods were sold in domestic market as such on payment of custom duty including 4% additional duty paid under Section 3(5) of Customs Act, 1962. Subsequently, appellant filed refund claim of additional duty in terms of Notification No. 102/07-Cus dated 14-9-2007. The adjudicating authority rejected the refund claim on the ground that the appellant has not paid additional duty at the time of importation of the goods as required under para 2(a) of the notification and not fulfilled the condition of notification no. 102/07-Cus dated 14-9-2007. Aggrieved by the Order-in-original appellant filed appeal before the Commissioner (Appeals), who upheld the order-in-Original and rejected the appeal therefore appellant is before me. 2. Shri. Mahesh Raichandani, Ld. Counsel for the appellant submits that ld. Commissioner(Appeals) denied the refund of additional duty under Notification No. 102/07-Cus only on the ground that the duty was not paid at the time of the import and it was paid at the time of domestic clearance by EOU therefore there is violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute that the goods so sold is on payment of VAT therefore the additional duty and VAT both cannot be levied simultaneously, to avoid this double taxation refund mechanism was provided under Notification No. 102/07-Cus. Since VAT was paid by the appellant refund of additional duty is admissible. This issue has been considered by this Tribunal in case of M/s. Meneta Automotive Components Pvt Ld(supra) wherein Tribunal has given following findings: 1.1 The appellant are a 100% EOU engaged in manufacture of an automobile part named Anti Noise Shims chargeable to Central Excise duty under heading 8708. The raw material for this auto component is HR Coils. In course of manufacture of Anti Noise Shims from HR Coils, Steel waste arises, the entire quantity of which was being cleared into DTA. The period of dispute in this case is from 1-3-2008 to 31-7-2010 and 1-8-2010 to 31-3-2011. There is no dispute that during this period, the scrap was cleared into DTA and the appellant company were paying full duty under proviso to Section 3(1) of Central Excise Act, 1944 without availing the concessional rate of duty under Notification No. 23/2003-C.E. The duty being paid by the appellant on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 subject to condition that the goods cleared into DTA are not exempt from Sales Tax or Value Added Tax levied by the State Government. According to the Department, this exemption from SAD would not be applicable to the DTA clearances which are not in accordance with the provision of para 6.8 (a) of the Foreign Trade Policy i.e. the DTA clearances in excess of the ceiling of 50% of the FOB value of exports. 1.3 It is on this basis that after issue of show cause notice, the Commissioner by the impugned order-in-original dated 31-8-2012 confirmed total duty demand of ₹ 2,56,12,927/- against the appellant along with interest thereon under Section 11AB and beside this, imposed penalty of equal amount on the appellant company under Section 11AC. By the same order, penalty of ₹ 1,00,00/- was also imposed on Shri Praveen Garg, Finance Head and Authorised Signatory of the appellant company under Rule 26 of the Central Excise Rules, 2002. Against this order of the Commissioner these two appeals have been filed. 2. Heard both the sides. 3. Shri B.L. Narasimhan, Advocate, the learned Counsel for the appellant, pleaded that so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Value Added Tax is leviable on the same and since in this case the goods sold by the appellant into DTA were chargeable to Value Added Tax and VAT has been paid, the SAD exemption has been correctly availed, that in any case in terms of Sl. No. 1 of Notification No. 23/2003-C.E., the exemption from the part of the Excise Duty leviable which is equivalent to the SAD, is subject to the condition that the goods cleared into DTA have not been exempted by the State Government from the Sales Tax or Value Added Tax and this exemption from SAD portion of the Central Excise Duty is not subject to the clearances being made in accordance with the provision of para 6.8 (a) of the Foreign Trade Policy, and that in view of the above submissions, the impugned order is not sustainable. 4. Shri M.S. Negi, the learned DR, defended the impugned order by reiterating the findings of the Commissioner in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. As regards the dispute regarding the calculation of education cess and S H cess, we find that this issue stands settled in favour of the appellant by the Larger Bench judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her it has been sold the actual users or the dealers, as only use to which Iron and Steel Scrap can be put, is by melting the same to make some other Iron and Steel products. Same view has been taken by the Tribunal in its judgments in the case of Indo Deutsche Trade Links v. CC (Imports), Chennai reported in 2014 (303) E.L.T. 442 (Tri.-Chennai) (para 33) of the judgment. 7.2 In view of this, the part of the impugned order confirming the duty demand on the basis of denial of exemption under Notification No. 21/2002-Cus. in respect of Basic Customs Duty is not sustainable and the same has to be set aside. 8. As regards the exemption from the portion of the Central Excise Duty equivalent to the Special Additional Customs Duty (SAD) payable under Section 3(5) of the Customs Tariff Act, the Department s contention is that the SAD would be payable as the clearances are not in terms of para 6.8 (a) of the Foreign Trade Policy and as such the exemption in terms of Sl. No. 1 of the table annexed to exemption Notification No. 23/2003-C.E. would not be applicable. 8.1 Since on the goods sold into DTA, VAT levied by the State Government has been paid, and in this regard, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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