TMI Blog2021 (7) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by the DTA unit. The Learned Counsel for the respondent submits that the remand proceeding was kept in abeyance awaiting the Hon ble Supreme Court judgment in the revenue s appeal COMMR. OF CENTRAL EXCISE-III, AHMEDABAD VERSUS M/S GUJARAT AMBUJA EXPORT LTD. [ 2015 (11) TMI 156 - SUPREME COURT] filed against the Mumbai tribunal order in COMMISSIONER OF C. EX., AHMEDABAD VERSUS GUJARAT AMBUJA EXPORTS LTD. [ 2006 (9) TMI 391 - CESTAT, MUMBAI] . This fact also clearly indicates that revenue was of clear view that the issue in present case and that of revenue appeal in Supreme Court were one and the same but surprisingly even if Supreme Court dismissed the revenue s appeal, revenue has tried to re-open the issue by filing this appeal which was dismissed by the Supreme Court. By following the principles laid down by Hon ble Supreme Court held that the product vegetable raw oil cannot be treated as product of 100% EOU and the same is eligible to clear as if the same is product of DTA and consequently the duty applicable to the DTA unit shall apply to the clearance of raw oil - In the present case the vegetable oil falling under chapter 15.07 during the relevant period is chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Respondent s own case. Hence, the present appeal filed by the Department challenging the dropping of demand only on merits. 2. Shri Sharad Airan, Learned Assistant Commissioner (Authorized Representative) appearing on behalf of the Revenue appellant reiterates the grounds of appeal and also submitted a detailed submission dated 16.03.2021 and subsequently on 17.03.2021 submitted some case laws. 3. Shri Anand Nainawati, Learned Counsel appearing on behalf of the respondent submits that the department s appeal is not maintainable as the revenue again seek to challenge the issue of eligibly of serial No. 20 of Notification No. 23/2003-CE dated 31.03.2003 which has already been settled in favour of Respondent by this Hon ble Tribunal vide order dated 29.06.2009 and the matter was remanded with very specific direction. The only issue was to be considered by the Learned Commissioner in remand proceedings, which has been rightly considered by him is whether any duty is liable to be paid or not on clearance of raw oil and if cleared in DTA. The Learned Commissioner has rightly held that no duty is payable as when oil is cleared in DTA no duty required to be paid. 3.1 Raw oi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to any other DTA units. The Revenue had filed an appeal against the said order before the Tribunal at Mumbai. The Tribunal vide its order dated 22.09.2006 reported at 2007 (207) ELT 132 (Tri- Mum) dismissed the appeal filed by the department. Following the aforesaid order of the Tribunal matter was remanded with the specific direction. However, the adjudication in remand proceedings were kept in abeyance as the said Tribunal order passed by Mumbai bench was challenged by the Department before the Hon ble Supreme Court. The Hon ble Supreme Court vide order dated 07.10.2015 dismissed the appeal filed by the department. He submits that in view of the aforesaid order passed by Hon ble Supreme Court the issue whether the respondents are liable to pay excise duty on oil cleared to DTA is settled and it has been held that no duty is payable in terms of Proviso to Section 3(1) of the Central Excise Act, 1944. 3.3 He further submits that as per the ground raised in the department appeal, it tries to distinguish the applicability of the judgment. Firstly, the adjudication in the remand proceedings was kept pending only awaiting the outcome of revenue s appeal pending with the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... InfoTech Pvt Ltd Vs CCE reported in 2003 (152) ELT 142 (Tri.). 3.7 He further submits that the expression waste in Serial No. 20 Notification No. 23/2003-CE dated 31.03.2003 providing exemption to waste of oil seed has to be construed in the same manner as that of the authorities mainly concerned with the implementation of EOU scheme namely Development Commissioner. The Central Excise department is estopped from taking contrary stand than that of Development Commissioner. He relies upon the decision of Hon ble Tribunal in the case of Fair Exports (India) Pvt. Ltd. vs CCE 2003 (158) ELT 385 (Tri.) wherein the Tribunal has set aside the demand of excise duty raised by disallowing the benefit of exemption under Notification No. 8/97-CE after observing that the bones obtained as waste during the process of manufacture of boneless meat, it cannot be treated as finished product. The said decision stands affirmed by Hon ble Supreme Court vide order reported at 2015 (321) ELT A274 (SC). 3.8 Without prejudice to the above submission, he also submits that clearance of oil is also covered under Serial No. 3 Notification No. 23/2003-CE dated 31.03.2003 as the condition NO. 3(iii) is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter in para 2(vii) a clear condition stipulated that by-product (viz-edible oils) may be sold in DTA for which no tariff concession may be available. We find that considering the above identical facts Tribunal Mumbai in the order dated 22.09.2006 reported at 2007 (207) ELT 132 (Tri. Mumbai) dismissed the appeal filed by the department and held as under:- 3.We have considered the arguments from both sides and the case records. In view of the fact that the respondents were not allowed to export vegetable oil produced by them and were permitted to export only de-oiled cake, it is very clear that there was no objection whatsoever to their selling the vegetable oils in the domestic market. Normally EOUs are required to export all their products and for any sale in the domestic market they are required to obtain specific permission after fulfilling export obligation. In a case like this where no customs and central excise duty benefits have been obtained by the respondents and the oil seeds as well as the oil produced from the same are fully exempted, the view taken by the lower appellate authority that such vegetable oil manufactured and cleared by the respondent would be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s particular case was earlier came before this tribunal wherein this tribunal has passed the following order: 6. Since this order was not available at the time of passing the impugned order, we agree with the Learned Advocate that the matter requires to be remanded to the Commissioner, who shall consider the clearance of raw oil by the appellants as if cleared by a DTA unit and examine whether any duty is liable to be paid the matter is remanded in the above terms. 4.6 From the above remand order of the tribunal, this tribunal has given clear direction to the Learned adjudicating Commissioner that he shall consider the clearance of raw oil as if cleared by DTA unit and examine whether any duty is liable to be paid. With this clear observation, the Learned Commissioner in de-novo adjudication order bound to decide the duty liability treating the clearance of oil by the respondent as if cleared by the DTA unit. The Learned Counsel for the respondent submits that the remand proceeding was kept in abeyance awaiting the Hon ble Supreme Court judgment in the revenue s appeal filed against the Mumbai tribunal order. This fact also clearly indicates that revenue was of clear view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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